HL Deb 18 February 1998 vol 586 cc283-304

6.41 p.m.

The Earl of Longford

rose to ask Her Majesty's Government whether, in the light of recent comments by the Lord Chief Justice, they will consider applying the same procedure to the release of mandatory life prisoners as is applied to discretionary life prisoners.

The noble Earl said: My Lords, I begin by welcoming the distinguished speakers who are to follow me in the debate. I am only sorry that each of them will have only nine minutes in which to speak. I am allowed 10 minutes but I shall not use those 10 minutes in order to leave a little margin for the other orators. I am particularly pleased that the right reverend Prelate the Bishop of Blackburn is honouring us by making his maiden speech tonight. I believe that he will bring us good news from the Synod. The Home Secretary is his "constituent" and therefore I think we can regard him as the Home Secretary's spiritual adviser, or even director. I hope that the Home Secretary will pay close attention, to say the least, to what his spiritual director says tonight.

I take my text from some recent remarks made by the noble and learned Lord the Lord Chief Justice at the end of an appeal case concerning Myra Hindley. I pass over his actual judgment and refer to his final comments. He said that he left the case with a certain uneasiness because he felt that the deepest issues underlying the situation had not been discussed and were not before the court. He was referring to the whole question of whether the Home Secretary should be allowed to make the final decision about the length of time that mandatory life prisoners spend in prison. He hinted that that ought to be debated. He appeared to desire an urgent debate on the issue of whether mandatory life prisoners should still be left to the mercy of the Home Secretary, or whether they should be placed on the same footing as discretionary life prisoners where the final decision rests with the judiciary. That is the issue I raise tonight. I realise from the quality of the speakers that it is one which interests many of your Lordships.

The real arguments against leaving such matters to the decision of the Home Secretary are two. The first is one of principle and the other is one of practice. The matter of principle concerns whether any Home Secretary, however enlightened—we know that the present Home Secretary is a good Christian socialist—should be placed in the position where he may have to choose between what is right and what appeals to the multitude. That is the present situation. If I draw on the case of Myra Hindley it is not because she is the only person convicted of murder I have ever met; I have met many. Off and on I visit half a dozen "lifers" at the moment. However, I take that one case out of the 3,000 mandatory "lifers". I believe that there are 400 or 500 discretionary "lifers". I return again to the remarks made by the noble and leaned Lord the Lord Chief Justice as regards Myra Hindley. He pointed out that her counsel had argued that she would never receive a fair trial because of the emotion that had been stirred up against her by the tabloid press and others. Was that an unreasonable contention in that case, and would it be unreasonable in other cases? What would be the situation of the Home Secretary if he had to consider what kind of woman she is?

The other day a taxi driver drove me home after I had visited a prison. He did not know that I knew Myra Hindley and he confided in me that he had four children and if "that woman", as he called her, came out of prison he would fear for his children. He showed that amount of hysteria about a middle-aged lady who has been in prison for 31 years. Where does that hysteria come from? To some extent it comes from politicians in the background, but primarily it stems from the tabloid press. The Sun newspaper has played a leading and discreditable part in generating that hysteria. Not long ago the Sun had a headline which ran, "Myra Hindley, the most evil woman who ever lived". We in the House of Lords may say that no one takes the Sun newspaper seriously. I read it every day but I think I am the only person here who does. Noble Lords may brush it aside and decide they need not bother with it. However, when I asked the taxi driver where he got his information from he told me it was from the Sun newspaper. As a result he told me that he feared for the life of his children if Myra Hindley were to leave prison. That is what we have to cope with and that is what the Home Secretary has to cope with.

If the Home Secretary were to tell his Cabinet colleagues that he was thinking of giving Myra Hindley a chance, they may reply, "That might suit your conscience, but what about our careers and our party. Would it suit the party?" It would be difficult for a Home Secretary to act in that way. It is frequently said that no Home Secretary would ever dare to let her out. I hope that is not true but it is frequently said. The Home Secretary can ignore the good opinion of her held by old-fashioned "do gooders" like me. However, even if he ignores me and people like me, a succession of priests have known her well. Perhaps people may wonder whether she is ministered to by Catholic priests. She is a Catholic. However, there is also the opinion of the Reverend Peter Timms who is a former governor of Maidstone Prison and is now a Methodist minister. I must refer to one recent opinion of a Catholic priest who ministered to Myra Hindley for four years in Cookham Wood. He said that he found her to be sensitive, caring, intelligent and polite. There is that opinion on the one hand, but on the other hand there is the opinion of the Sun newspaper.

That is the situation today and that is what the Home Secretary is faced with. People may ask whether the Home Secretary would want to give up this responsibility we are discussing. I should have thought that he might be quite pleased to be rid of it. However, that is neither here nor there. Therefore there is the argument that we should take such a decision away from someone who, to some extent, is bound to be at the mercy of popular emotion.

The other argument concerns practice and how one arranges matters. At the present time a discretionary life prisoner can make an application to the Parole Board and can be represented before it and can, of course, appear in person. The decision of the Parole Board, with a judge presiding, is final. If the Parole Board decides that a prisoner should be released, that prisoner is released. That is the existing machinery. That is much fairer than the present arrangements for Myra Hindley. She or her lawyers have to make representations in writing to the Home Office and a reply is given without providing any real reasons, unless you call some reference to deterrence and retribution a reason. That is the difference between the machinery in the two cases. I do not say that the present arrangements for discretionary life prisoners are perfect. I regularly visit two discretionary life prisoners who find the arrangements unsatisfactory. If one seeks to apply the arrangements to 3,000 prisoners instead of 400 or 500, they need modification. I only say that in principle it is correct that the decision should be removed from someone who is at the mercy of popular emotion. Arrangements should be made to give the prisoner proper representation before a tribunal whose decision would be binding.

I hope that other speakers will bring their own expert knowledge to bear in different ways. Although I cannot expect a positive answer today, I hope that we shall at least hear from the Government that they are giving the matter careful attention.

6.50 p.m.

The Lord Bishop of Blackburn

My Lords, it is with some trepidation that I speak for the first time in your Lordships' House in this debate on a sensitive matter which provokes strong responses in people of opposing views. I do so not because I am told that the diocese of Blackburn contains more prisons than any other in the northern province, nor—despite the remarks of the noble Earl, Lord Longford—because the Home Secretary is the much respected Member for Blackburn in another place. My concern goes back over 30 years to the time when I was curate of the parish of St. Anne in Wandsworth. Three weeks before my ordination, the parish had no accommodation for its new curate. Parishes behaved like that in those days. So I ended up with a room in the gatehouse of Wandsworth prison. Every day as I sat at my desk I looked out on prisoners exercising in the yard below. Later, as a relief chaplain in that prison, I got to know some of them including a number serving life sentences. That experience has never left me.

Mandatory life prisoners and their release was the subject of a debate in the General Synod of the Church of England in July 1995. It was on the motion from the Diocese of Sheffield, 'That this Synod recognises that the system of mandatory life sentence gives rise to many injustices and therefore recommends that the penalty for murder should be a maximum of imprisonment for life". The motion was carried by a massive 317 votes for to only one vote cast against. The debate, as I remember it, was both sombre and serious. Members of the Prison Service, the Probation Service and the judiciary all took part. There was a widespread recognition of the pressures facing the Home Secretary in relation to the sentence for murder. Synod members felt that the present system of mandatory life sentence for murder led to injustice because it was not possible for the sentence to be fitted in individual cases to the particular crime. Nor was the Synod happy with a situation in which the length of the custodial sentence is determined by the exercise of the Home Secretary's discretion rather than by a judicial decision in open court.

In the light of that debate, and in response to it, in 1995 the then Home Secretary said that retribution, deterrence and public safety would all be factors to he taken into consideration, but so too would public opinion. The real concern that that raises is that in principle, even if not in practice. it could lead, as we have heard from the noble Earl, to individual cases becoming vulnerable to the political influence of the day and could be altered with a change of Home Secretary.

The mandatory life sentence for murder is based on the assumption that murder is a crime of such unique gravity that the offender should forfeit his right to freedom for the rest of his life. I believe respectfully that such an assumption is perhaps a fallacy. It arises from divisions between the legal definition of murder and that which lay people believe to be murder. The common law definition of murder embraces a wide range of offences, as I understand it, some of which are truly very grave indeed. But logically, constitutionally, and in jurisprudence, surely the decision on punishment should be made in open court. The judge after trial should be able to pass such sentence as is merited by the facts of the case which have been laid before the court.

The Christian Church has always believed in the importance of human life and its dignity under God who created life in his own image. In that context we look to the prison system not only for deterrence and punishment but also for the rehabilitation of offenders so that they may know the gravity of their offences. Sadly, at present, prison does not always help the rehabilitation process and does not allow individual decisions to be considered for individual people. Christ always treated individuals as unique in their own right. As I think back to those men in the prison yard at Wandsworth all those years ago, I am very conscious that the present system of sentencing for murder may be denying to some individuals the proper particular attention that the facts of the case demand.

These are very grave and sensitive matters. But I believe truly that if judges were allowed to have specific powers in the case of murder our judicial system would be the better served for the future.

6.56 p.m.

Lord Rowallan

My Lords, it is my pleasure on behalf of the whole House to congratulate the right reverend Prelate the Bishop of Blackburn on his maiden speech. We have waited for this speech since 1995 when he first entered your Lordships' House. It has been well worth waiting for.

The right reverend Prelate is a Countryside Commissioner as well as a bishop and is keen on the right to roam, although not a member of the Ramblers themselves. He has spoken robustly on the subject, stating about the idiom that an Englishman's home is his castle that, "It is not their castles, brother, that we're talking about. It is their open spaces".

He has also spoken on the subject of my right honourable friend William Hague spending his time in his diocese in a double-bedded room with his then fiancée who is now his wife. He disapproved of that. But he has given his blessing for ITV's new religious series, "Heaven knows", described as the ultimate quiz.

He is a man of many thoughts. In fact he might have been a journalist. But he also possesses a deep religious fervour, and now that he has broken the ice here in your Lordships' House, I trust that we shall hear from him on many more occasions.

I must also thank the noble Earl, Lord Longford, for introducing this most interesting debate. Discretionary life sentences are set by the judiciary, and mandatory life sentences by the Executive. But that has come about only as a result of the abolition of the death penalty. I agree with the right reverend Prelate that it must be right that judges, the judiciary, should decide on the length of a prison sentence. They are on the spot, so to speak.

But it is also important that the judge is given parameters from the Executive within which to work, otherwise sentencing depends on the judge's own moral code. Several judges seem to have had very different views upon the subject of rape—first, second, or even third-time rapes—and on murders. That cannot be right. We must have a better system.

I believe that the whole system is the wrong way round. Judges set the term, and prisoners have time off for good behaviour. Why on earth do we do it that way round? Surely the judge should set the term and then there should be "add-ons" for bad behaviour. A prisoner's behaviour should always be good. That is the purpose of the custodial sentence. The whole idea of putting someone into prison is to make them better and to enable them to see the error of their ways and the unacceptability of their behaviour towards the community. So if a judge passes a sentence of 15 years, the public think, "Well, he might be there for 10 years, or it might be seven years". But they do not really know how long it will be.

The transition period would be difficult. But the general public would be happier knowing that if someone receives a sentence of 15 years, that is what they are getting.

As for Myra Hindley, as the Lord Chief Justice said, in a recent extract from his judgment to the Secretary of State: The applicant clearly feels that she is held hostage to public opinion, condemned to pass the rest of her life in prison, although no longer judged a danger to anyone, because of her notoriety and the public obloquy which would fall on any Home Secretary who ordered her release". I feel sure that when the noble Earl, Lord Longford, says that she is a reformed character, he sincerely believes that; and I honestly believe that an awful lot of other people sincerely believe that. But I also believe that the general public would not let her survive for five minutes outside gaol. She is the most reviled woman in Britain, and she will never be forgotten or forgiven—

The Earl of Longford

My Lords, perhaps I may intervene. Is the noble Lord seriously saying that respectable members of the public would murder her? Surely he cannot be making that allegation against the British public.

Lord Rowallan

My Lords, I am indeed saying just that. I am positive that someone would carry out the murder of Myra Hindley were she to be outside gaol. Her crimes towards those children whom she helped murder all those years ago will never be forgotten, whatever the rights and wrongs of her present situation.

Before anybody says that I am bigoted, I employ criminals in my own life. Just yesterday I was at a meeting in the other place with Apex Scotland. That organisation provides criminals with work, and has done a very good job too. So I am not bigoted. But it is my view that if Myra Hindley wishes to see the rest of her life, the best place she can be is inside gaol, and I mean that most sincerely.

So the answer to the interesting question raised by the noble Earl, Lord Longford, is: yes, we should now harmonise the procedures between mandatory and discretionary life sentences, as there is no chance of this country returning the death penalty to the statute book. But we should do so only when a life sentence really means life and not anything less; when 25 years means 25 years, and the punishment fits the crime.

7.2 p.m.

Lord Goodhart

My Lords, I respect enormously the views, work and courage of the noble Earl, Lord Longford, displayed over so many years. I speak in his support. In doing so I should make it clear that I do not wish to express any personal view of the Hindley case. I have not studied it in great detail. I did read the recent judgment of the Lord Chief Justice, and I have no idea what decision I myself would take if I had the responsibility to take it—which, thankfully, I do not. I wish to examine the treatment of mandatory life prisoners in principle.

Before doing so, I should like to congratulate the right reverend Prelate the Bishop of Blackburn on a powerful and persuasive maiden speech. During my short time in this House I have become aware of how much this House values the contributions from the Bishops' Bench. I hope that we shall hear many more such contributions from the right reverend Prelate.

I have in a sense to declare an interest. For many years I have been a member of the council of the human rights organisation, Justice. I was for six years chairman of its executive committee. I wish not merely to declare that interest but to emphasise it because Justice published in 1996 a powerful report under the title, Sentenced for Life, which explains the history of the release process and proposes reforms.

The first question that might be asked is: how did the Home Secretary become concerned at all with the release of life prisoners? Historically, the release of life prisoners, like the commutation of the death sentence or the grant of a royal pardon was a matter of the royal prerogative and was exercised in the normal constitutional way through the Home Secretary. The power of release was put on a statutory basis by the Criminal Justice Act 1948, which provided for release on licence by the Home Secretary. Under the Criminal Justice Act 1967 the Parole Board was created. It was provided that no life sentence prisoner could be released unless the Parole Board recommended release to the Home Secretary.

It was later established by two important cases in the European Court of Human Rights that in relation to discretionary lifers that procedure was in breach of Article 5 of the European Convention on Human Rights. There was the Weeks case, decided in 1987, and the case of Thynne, Wilson and Gunnell, decided in 1990. It was held that the procedure for the release of discretionary lifers had to be a judicial procedure involving a judicial decision.

In response, the Criminal Justice Act 1991 produced a revised procedure for the release of discretionary lifers. That procedure is capable of some improvement, but is broadly speaking open and fair. Once the tariff for retribution and deterrence set by the judge at the trial has been satisfied, the prisoner has a right to apply to the Parole Board. The Parole Board considers his application. That is a judicial process in which the prisoner can make representations. He is entitled to see most of the material placed before the panel; to an oral hearing before the panel; to representation by a lawyer; and to legal aid. The board is required to give full reasons, and of particular importance is the fact that the Home Secretary is required to accept the recommendations of the board.

The procedure for mandatory lifers is much less favourable. If there is a reference, the prisoner may submit written representations but is not entitled to an oral hearing and has no right to legal aid. The recommendations of the Parole Board are advisory only. and the final decision as to whether or not the prisoner is released is taken by the Home Secretary, who is entitled—or claims to be entitled—to take into account the public acceptability of early release.

One might ask: what justification is there for the difference in the treatment of those two types of life prisoner? In my view the answer is that there is no such justification. The seriousness of the offence cannot justify the distinction because, in fact, the discretionary lifer procedure applies to those who receive mandatory life sentences under Section 2 of the Crime (Sentences) Act 1997; that is, those who commit second, violent offences. So the discretionary lifer procedure under that Act may apply to a violent rapist. On the other hand, the mandatory lifer procedure applies to a wife who kills a violent or alcoholic husband in circumstances which fall just short of provocation, which would reduce the crime to manslaughter.

It is true that the European Court of Human Rights has so far held that judicial procedure is not required for the review of the detention of adult mandatory lifers. But it is coming steadily closer to changing that view. It said in 1996, in the Hussain case, that judicial procedure was required for the consideration of the release of persons who were under the age of 18 when they committed murder. That was duly enacted into British law in the Crime (Sentences) Act 1997. I understand that a case is on its way—though its admissibility has not been finally determined—to the European Court that raises the same question in relation to the sentencing of 18 to 21 year-olds.

But even if the European Court does not change its position it seems a matter of plain common sense that the release of all life prisoners should be subject to judicial and not to executive decision. We have already moved quite a long way in that direction. I must say, if I were Home Secretary, I should be more than pleased to get rid of the remainder of that burden. We should bring the mandatory lifer procedure into line with the discretionary lifer procedure, as the noble Earl, Lord Longford, has asked. The simplest way of doing that would be to get rid of mandatory life sentences. In 1991 this House passed an amendment to abolish mandatory life sentences and to make life sentences for murder discretionary, with a maximum of life. The noble and learned Lord, Lord Ackner, played a large part in achieving that amendment. It was, regrettably, removed from the Bill in the other place. That, however, is another debate for another time. On this occasion I simply say that, as long as mandatory sentences are retained, we should bring the mandatory-lifer procedure for release into line with the much more preferable procedure for discretionary lifers.

7.10 p.m.

Lord Ackner

My Lords, once in a while—very infrequently—I have the illusion that my limited powers of advocacy, now virtually extinct, have made a convert. I greatly treasure those rare occasions, one of which occurred on 20th February last year. The noble Baroness, Lady Blatch, the very distinguished Home Office Minister in the previous Government, conceded (Hansard, col. 824) that not all murders were uniquely heinous. It was not a very great concession; it was just novel to hear it. It was not a very great concession because, not long before she made it, Trooper Clegg, who had murdered a passenger in a car by shooting at her, intending to kill, had been released after two and a half years in prison.

I am confident that the noble Lord, Lord Williams of Mostyn, will share the view that murder is not a uniquely heinous crime. Why then are the release mechanisms when a person is sentenced to life imprisonment for murder different from those when a person is sentenced to life imprisonment in other cases, the judge using his discretion?

The differences are not supported by the noble and learned Lord the Lord Chancellor, either when he was in opposition or since this Government have come to power. In the debate on 6th November 1989 on the recommendations of the Select Committee on life imprisonment, on which I had the privilege to be a member, he said: The point is that the duration of imprisonment should be decided by judges in an open process and not by the Executive behind closed doors, without even the authority of Parliament".—[Official Report, 6/11/89; col. 522.] I brought him up to date during a Starred Question on 24th June last year (Hansard, col. 1463) when, having in advance of the question drawn his attention to the quotation I have just made, I asked him in terms whether he still agreed with the proposition that the decision as to how long a person should spend in prison was a judicial decision to be made by a judge in open court after hearing argument, subject to a right of appeal, and should not be made by a politician in secret without any right of appeal. To that the noble and learned Lord said: The only difference between my position as expressed then and now is that today I have a keener awareness of the arguments on the other side …".—[Official Report, 24/6/97; col. 1463.] The present Leader of the House, when in Opposition, was of like view to the noble and learned Lord the Lord Chancellor. In the debate on the amendment moved by the noble Lord, Lord Nathan, in 1991, to which reference has been made, which achieved the proposition that the automatic life sentence should go, the noble Lord, Lord Richard, said: We may he told that the public require that Ministers and not judges should make those decisions. In my view there is absolutely no evidence to justify that belief, which I am sure is sincerely held. No evidence has ever been put forward to justify it. In fact, I believe that precisely the reverse is true. To be blunt, I believe that the public have an infinitely greater confidence in judges than in Ministers—of any government—to make decisions on the length of sentences".—[Official Report, 18/4/91; col. 1570.] The matter came before the Home Affairs Committee in 1995, when it considered both the question of the mandatory life sentence and the position of the Home Secretary. The committee reached a preliminary conclusion on that occasion, in paragraph 103: the responsibility for setting the tariff and for taking decisions on release should be removed from the Home Secretary. The basis for this view is that it is wrong in principle for the executive (i.e. a politician) to have a role in decisions which effectively determine how long a person subject to a mandatory life sentence spends in prison, a role it does not have in discretionary life sentences". The matter came before the committee again the following year, when it considered further evidence. The committee reached the same conclusion and confirmed that that was its view.

In paragraph 10 of Appendix 8, Justice made these observations: The present Home Secretary has told Parliament that he has a function additional to the assessment of risk: gauging the public acceptability of release. We agree with the Committee that this seems to be in response to a few notorious cases. It is trite to state that hard cases make bad law. The fact that there are some difficult decisions in the offing does not justify the assertion of a new power, and a new power created not by legislation but by Parliamentary statement. Further, we consider that 'public acceptability' is an inappropriate criterion for such individual sentencing decisions: it is both too loose and too susceptible to ill-informed public pressure… It is in our view unsustainable in a modern democracy to seek to retain such an excessive power over the freedom of a citizen, however grave his offence, in private, extra-judicial proceedings. This power is all the more anomalous… Justice then goes on to deal with the statutory power to recall from prison.

This matter was considered by an extremely expert committee, an independent inquiry into the mandatory life sentence for murder, commissioned by the Prison Reform Trust and presided over by the former Lord Chief Justice, the noble and learned Lord, Lord Lane. He specifically referred to the so-called additional power, "the third phase" as he referred to it, "acceptable to the public". The Committee said: The introduction of a third phase after punishment is complete, and dangerousness is no longer an issue, bids fair to alter the whole framework of the system… Experience teaches that when politicians resort to 'public opinion' as a basis for a change of policy or a fresh course of action, it is advisable to scrutinise the proposals with particular care. This proposed alteration of the rules seems to us to demonstrate, as clearly as anything could, the case for taking such decisions on the liberty of the subject out of the hands of politicians and putting them under the control of a body independent of both politicians and the Executive". I submit that it is deeply depressing that, a government with the power that this Government have at the moment, should suffer from such a pathological fear of "going soft on crime", that the recommendations from the sources I mentioned should go unlistened to.

7.20 p.m.

Baroness Linklater of Butterstone

My Lords, I listened with great interest and admiration, and with some awe, to what noble Lords said on this subject. They demonstrated more knowledge, wisdom and skilful argument than I could ever hope to illustrate. I also add my congratulations to the right reverend Prelate on his maiden speech. I made mine what seems like only five minutes ago, and he made an excellent fist of it.

I am not a lawyer and have no legal training. My experience has been confined to working with people who cope with the practical outcomes of our system of justice and those who have to see through the realisation of the decisions that are made in court. I was originally a social worker in East London and helped to set up the first visitors' centre for prisoners' families at Pentonville. I was the co-founder, 12 years' ago, of the Butler Trust, of which I am still a trustee. We give awards to people working within the prison services of the United Kingdom who have done outstanding work in some way or other and essentially concern ourselves with the standards of best practice in prisons today.

My interest is in what legal decisions mean, when translated into reality, for large numbers of people in our society. They directly affect all those involved in the prison services as well as the community-based services which work with offenders and the penal system. There are two issues. The first is public confidence concerning sentencing and release decisions for both mandatory and discretionary lifers; the second is the enormous impact on our prison and community services—both human and financial.

Now, like never before, justice must not only be done; it must be seen to be done. Where mandatory sentences are concerned, it is not seen to be done because they are made by the Home Secretary on expert advice, including the Lord Chief Justice, but in private without the benefit of hearing all the evidence of the court and against which there can be no appeal. When the executive and not the judiciary take such momentous decisions, how can political considerations play no part?

Furthermore, when it comes to decisions about release for mandatory lifers, they are not only determined by judgments on retribution, deterrence and future risk as with discretionary lifers, but in addition by the Home Secretary's own assessment of public confidence. How, I wonder, is that assessment arrived at? Is it being "tough on crime"? He also has the power to revise upwards the tariff or minimum sentence period. That includes the option of "whole life tariffs" when prisoners end their days in prison.

By contrast, the discretionary life sentence prisoner, whose tariff has been set by a judge and whose sentence and tariff are subject to appeal, will have his release on licence decided by the Parole Board following an open judicial procedure for release and recall. We have already heard mentioned one or two of the committees which looked into this matter. I noted no less than seven parliamentary or independent committees which have looked at the issue since 1975 and their findings were unanimous; that is, that the systems governing the tariff and release of mandatory life prisoners must be brought into line with those of discretionary lifers. The professionals of the penal world, therefore, are in agreement; it is the politicians who are maintaining and driving the current state of affairs and the punitive aspect of our system.

The realities are these. We have more than 3,500 lifers in our system at the moment out of a total prison population of over 64,000 in England and Wales. Thirty of those are destined to die inside. The rest will eventually pay their debt to society and come out of prison. They represent more than the entire lifer population of Europe put together. What does that tell us about our sentencing policies? Can we really accept that the population of Britain is so very much more criminal than anywhere else in Europe? I doubt it. The average length of time a lifer stays inside has been creeping up and is now around 15 years, costing an average of £25,000 a year. It usually starts at around £40,000 and comes down to around £20,000 at the end of the sentence.

Those people become the responsibility of our prison services. When a prisoner goes inside to serve a long sentence, it often feels like the end of a story to the public at large. In fact, it is the beginning of another very long story for all those involved in the custody, containment and care of that person. We never hear about that; nor do we want to unless something goes wrong, like an escape or a riot. Prisoners are likely to become increasingly institutionalised and it is left to the prison services to do what they can to address their offending behaviour and all the range of problems that such dysfunctional and often inadequate people bring with them.

For example, one of the most difficult situations of all to work with constructively in prison, for both staff and inmates alike, is uncertainty, which is a key feature of life sentences. It does not take much imagination to realise the difficulties of sentence planning at the beginning or setting up pre-release schemes at the end under those circumstances. There tend to be management problems, particularly with young men serving long sentences when 15, 20 and 25 years are meaningless periods of time. They must then be prepared for life outside and the hope is to return them no more damaged than when they went in.

The difficulties and cost of maintaining those prisoners on release then follows and the cost in human terms to children and families is yet another element in the equation. I have seen mothers go through extraordinary charades to conceal from their children where their father is, and have seen the effects on children of the bullying and ostracism that having a father inside can involve.

Of course, we must have a system which can punish appropriately according to law across the range of punishments available to the courts. I simply ask your Lordships and the Government to consider: what price our retribution? Can it ever become too high? How can it be that we are so out of kilter with the whole of the rest of Europe? With men and women who have committed a range of types of murder between which in this country no distinction is made and for whom there is a mandatory life sentence, their tariff and their future lies in the hands of the executive and not the judiciary. How long, in all commonsense and justice, can we allow that to continue?

7.28 p.m.

Lord Elton

My Lords, as we are a few minutes ahead of time and I spent three years in charge of the Prison Service under the Home Secretary of the day, perhaps your Lordships will allow me not more than two minutes for each of those three years to make two small points.

The first is that people change in prison. The right reverend Prelate—whom I also congratulate on his maiden speech—referred to the rehabilitative role of prisons which has been much diminished. Nevertheless, people change in prisons and not to recognise that fact— as my noble friend Lord Rowallan would not recognise it—is not only brutal but brutalising to the people in prison. I pay tribute to the enormous tenacity of the noble Earl who launched this debate in favour of those who, in his view, change.

But the more pertinent fact is a more simple one and it undercuts the arguments that we heard on the legal history of committees and legislation. It strikes me because the one aspect of imprisonment that I could not deal with as a Minister in the Home Office and a Member of this House was life sentences. That was deemed to be so political that it had to be answerable in the House of Commons. It was therefore the responsibility of another Minister of State under the Home Secretary—the Home Secretary had the duty of dealing with mandatory life sentences. I see that a former Home Secretary, the noble Lord, Lord Baker, is present in the Chamber. He may want to venture a view in the next few minutes. However, I cannot believe that it was ever an agreeable duty in that I cannot believe any Home Secretary would actually cling to it.

What we had—and it struck me as odd—was the whole of the judicial system in the hands of people whose careers were devoted to being insulated from political pressure and the tide of public opinion in order to give an entirely fair, independent and unbiased view on the issues under their control, except for the most serious cases which were handed to someone who had only attained his position through exercising very great skills in understanding political pressure, newspaper reports and so on, and who held on to that position only if he continued so to do. Therefore, those decisions, which were taken in the exact focus of public interest, were likely to be the most political decisions of all.

I cannot see that there is either consistency or justice in that. I hope that the Minister will listen to some of the powerful arguments that have been put in favour of the noble Earl's Motion.

7.30 p.m.

Lord Thomas of Gresford

My Lords, I thank the noble Earl, Lord Longford, for raising an anomaly which has no logic either in morality or in law. I congratulate the right reverend Prelate the Bishop of Blackburn on what he said. I was particularly impressed by the way in which he stressed the importance of the individual and how each individual needs to be considered within the prison system. He rightly said, in words that were echoed by my noble friend Lady Linklater, that the facts differ so much from case to case. I know that the Minister will remember many such cases, which can range from a wife giving way for a moment to stress and anger, all the way through to the deliberate execution of a bank guard with a handgun in the course of the carrying out of a robbery.

It is helpful to consider how we arrived at this position. The life sentence has never meant the imprisonment of a person for the remainder of his natural life. It is simply an indeterminate sentence. The duration of the mandatory life sentence was decided by the Home Secretary prior to 1983 subject only to two fetters. One was that he had to have the advice of the Lord Chief Justice and, if possible, the trial judge. The other, after 1967, when the Parole Board was set up, was that there had to be a favourable recommendation from the board. Until 1983, the cases of all life prisoners were considered after four years by a joint Parole Board/Home Office committee which recommended a date for review. No distinction was drawn until 1983 between those serving a discretionary life sentence and those serving a mandatory life sentence. So we are not dealing with some long tradition when we address this subject. It is a practice that has grown up over a period of some 15 years. There is no lengthy legal history behind it. It has arisen in a series of steps.

On 11th October 1983, in a speech to the Conservative Party conference, the then Home Secretary, Sir Leon Brittan, explained that there would be important changes in practice. Murderers of police or prison officers, terrorist murderers, sexual and sadistic murderers and murderers who used firearms in the course of robbery could normally expect to serve at least 20 years. As to decisions on the release of prisoners, he said that he would look to the judiciary for advice on the time to be spent by lifers for retribution and deterrence and to the Parole Board for advice on risk. The scheme he then proposed was that, after three years from the date of the life sentence, the judiciary would be asked to express an initial view on the appropriate period to be served for retribution and deterrence after which the Home Secretary would decide the date for the first review. After that announcement prison policies hardened. They crystallised into a two-tier approach to sentencing: the fixed period for retribution and deterrence became known as the tariff, to be served in all save the most exceptional circumstances. Only then could consideration be given to the progress of the prisoner, his motivation and the likelihood of his reoffending. That was the first step.

The second step occurred in 1987. Following the Divisional Court case of Handscombe, the Home Secretary was told that he should receive the advice of the judiciary on the tariff as soon as practicable after sentence and should not substitute his own views for those of the trial judge. It was also said that in discretionary sentencing the trial judge was to take account of the notional reduction of one-third remission on "an equivalent determinate sentence" in fixing the tariff. This was accepted by the then Home Secretary, now the noble Lord, Lord Hurd, who required the trial judge who was passing a discretionary life sentence to write to him. The date for first review would be three years before the expiry of the tariff period.

It was at that point that the treatment of discretionary and mandatory life prisoners began to diverge considerably. The then Home Secretary said that, since in mandatory life cases the sentence was not at the discretion of the judge, no question of "a notional equivalent determinate sentence" could arise. He therefore reserved the right in mandatory cases to take into account other factors, including the need to maintain public confidence in the system of justice, when determining the tariff.

This opened the door, unhappily, to the practice whereby a Minister can adjust the judicially recommended tariff upwards if in his view the tariff did not match the gravity of the crime. So we were moving away from judicial control, as the Divisional Court had desired in Handscombe, to a system whereby the Home Secretary could put in his personal view; and as it was his personal view, no doubt based on advice, it could well be an arbitrary decision.

The procedures were condemned by the European Court of Human Rights in the Thynne decision, to which my noble friend Lord Goodhart referred. That required judicial consideration of loss of liberty and the lawfulness of detention. Then, as the noble and learned Lord, Lord Ackner, pointed out, attempts were made in the Criminal Justice Bill in the 1990–91 Session to abolish mandatory life sentences and to ensure that judicial procedures, rather than the arbitrary decision of the Home Secretary, should govern the setting of the tariff and the decisions on release after the expiry of the term. Amendments were passed in this House with the support of two former Lord Chancellors, including the noble and learned Lord, Lord Hailsham, the Lord Chief Justice, the Master of the Rolls and five Law Lords. But they were reversed on a whipped vote on strict party lines in the other place. I regret to say that the noble Lord, Lord Baker, will remember that, because he was the Home Secretary at the time. The only concession that was made in the Criminal Justice Act 1991 was that the trial judge was required to announce the tariff when imposing a discretionary life sentence. The differences between the treatment of the discretionary life prisoner and the mandatory life prisoner have been fully set out by my noble friend Lord Goodhart. There is no need for me to repeat them.

All this has led to a position in this decade whereby there has been a populist approach to crime and punishment, which has filled the gaols of this country to a degree unknown to our European partners, and continues to do so. To this day, hundreds of millions of pounds are being wasted on prison building rather than being spent on crime prevention, compensation for victims, rehabilitation programmes and much more constructive ways of trying to prevent offending. The posturing on the Conservative Government Benches was matched by the rhetoric of the Labour Opposition, all, as the noble and learned Lord, Lord Ackner, pointed out, just in case votes could be lost in the election that was seen to be approaching.

Judges, whose sentences have increased under the pressure of that rhetoric—goal sentences have gone up right across the board—were characterised as soft, do-gooders and even liberals. In the attack on the judges, on civil liberties, on the Parole Board and on the humane traditions of penal policy to which the noble Lord, Lord Elton, referred, which were mounted by the last government, I regret to say that the Labour Party was not an effective, articulate Opposition. They were collaborators.

The noble Earl, Lord Longford, referred to Myra Hindley who has been in the middle of all this change of policy. I recall that I was present in court with my noble friend Lord Hooson, who represented Ian Brady, when the jury came back in that case. I have to say that at the Chester Assizes, as it was in those days, it was the most horrific case that is remembered to this day. But this unfortunate woman—this wicked woman, if you like—has nevertheless been subjected to changes of policy over the past 25 years. The tariff of 25 years that was fixed by Lord Lane in 1982 was increased to 30 years in 1985, but she was not told about it. It was then changed to whole life in 1990, but she was not told about it. In 1994 Mr. Howard, the then Home Secretary, announced that those upon whom whole life tariffs had been imposed would not thereafter be able to gain release. There would simply be a review every 25 years to see whether a determinate sentence could be put into effect only on questions of retribution and deterrence. The tariff on Myra Hindley was set afresh as whole life in February 1997. It is not as though her crimes had become any more heinous; she had simply become demonised by the press and votes were seen to be in it. The present Home Secretary has confirmed that tariff, although he has said that he is open to the possibility that exceptional circumstances, including exceptional progress in prison, might render reduction appropriate.

There are no rational grounds for distinguishing between a mandatory and a discretionary life sentence. If it is discretionary, it means almost by definition that the person who is sent to prison for life for rape or robbery is a dangerous person, and far more so than so many people who have, under stress, momentarily lost control of themselves and committed murder. It is wrong to equate those two sorts of crimes at all. Murder, as the noble Baroness, Lady Blatch, remarked in the debate to which the noble and learned Lord, Lord Ackner, referred, can vary enormously in gravity.

The public interest demands a rethink altogether on penal policy. We must break away from the blinkered mindcast that we have had over the past few years. We must reduce the number of people who are sent to prison. There must be a fresh and a bold start in considering the best use of resources when dealing with offenders. The political sensitivities of Ministers must not be allowed to influence release decisions. I certainly echo the noble Earl, Lord Longford, whose tenacity the noble Lord, Lord Elton, praised, when he said that no Home Secretary should choose between what is right and what is pleasing to the multitude. Let that be his message.

7.44 p.m.

Baroness Anelay of St. Johns

My Lords, I, too, add my congratulations to the right reverend Prelate the Bishop of Blackburn on his maiden speech. He pointed out that this was a matter of a sensitive nature, the discussion of which can cause strong opposing views. How true indeed, as it has been proved tonight and, I am sure, will continue to prove to be both here and outwith this Chamber.

I thank the noble Earl for introducing this debate and, like others, I pay tribute to his deep and enduring commitment to this subject. Disagree we may, but I always respect his sincerely held views.

The debate tonight is on a narrow point, but one which is of public importance. The question is, I believe, whether the Parole Board or the Home Secretary should exercise the final discretion as to whether or not a person serving a mandatory life sentence should be released. The debate is not about whether or not mandatory life sentences for murder should be abolished, although that issue has crept in now and again tonight. I note that the Minister, the noble Lord, Lord Williams of Mostyn, gave a commitment on that matter at Question Time in the House on 15th July last year (at col. 907 of Hansard) when he stated in answer to a Question put by his noble friend Lord Ashley of Stoke that, the Government have no plans to abolish the mandatory life sentence for murder". As the noble Earl pointed out earlier, the debate has arisen out of the remarks made by the Lord Chief Justice and reported in The Times Law Report. The Lord Chief Justice stated that there was room for serious debate as to whether the task of determining how long convicted murderers should serve imprisonment as punishment for their crimes should be undertaken by the judiciary, as in the case of discretionary life prisoners, or, as now, by the executive. That was, he said, in large measure a political and constitutional debate, not a question for decision by the court. Those remarks were made, I believe, as a statement of fact and not a recommendation that changes should be made. Tonight's debate is indeed in the correct forum. The Lord Chief Justice has made no recommendation either that we should hold such a debate, nor indeed as to what the outcome should be.

Several noble Lords have referred to the history of the development of the rules governing the release of mandatory and discretionary life prisoners. In brief, the rules governing the release on licence of mandatory life prisoners are clearly set out in Section 35(2) of the Criminal Justice Act 1991. If the Parole Board recommends that a person should be released on licence, the Secretary of State may, after consultation with the Lord Chief Justice, together with the trial judge, if available, release on licence that life prisoner who is not a discretionary life prisoner. Section 35(3) provides that the board shall not make a recommendation under subsection (2) unless the Secretary of State has referred the particular case to the board for its advice.

The setting of the tariff in the first place is a matter to which the Minister, the noble Lord, Lord Williams of Mostyn, referred in a Written Answer published in Hansard on 15th December 1997 (at col. WA74) where he stated that, The Secretary of State attaches considerable weight to the judicial recommendations on tariff in mandatory life-sentence cases but is not bound by them and may set tariffs lower or higher than those recommended". Those discretionary life sentences are, of course, subject to a different procedure. I shall not go into further detail. The noble Lord, Lord Goodhart, elaborated admirably on that point.

The view taken on these matters by my right honourable friends who served as Home Secretaries in another place and some of whom now serve in this House—and, as has been pointed out, one or two are with us this evening—has been both constant and consistent. It is that the Home Secretary's role in determining the release date of mandatory life prisoners should be retained. We believe that in this particular category of crime public interest and concern justify the Home Secretary's exercise of his discretionary powers to set and vary tariffs.

As I understand it, at the time of the abolition of capital punishment it was said in debate in both Houses that a unique penalty for the crime of murder would remain. This reflects the fact that the taking of human life is a matter which must not be devalued in itself. After all, it involves two intents: to kill or to do really serious physical injury. It was said in debate in both Houses that the public should be reassured that no murderer would be released except on the expressed decision of the Home Secretary who would then be accountable directly to Parliament if anything went wrong.

Tonight the noble and learned Lord, Lord Ackner, has stolen from me many quotations made by the Government when in Opposition, but I am glad that he has left me one to which I may refer. I note that a different view was taken in this House by the noble Lord, Lord McIntosh of Haringey, on 11 th March 1996, when he said: We have come to the view that the judges, the Parole Board and the prison system as a whole are responsible for the tariff for mandatory life prisoners rather than a politician, the Home Secretary".—(Official Report, 11/3/96; col. 683.] I assume that the Government's position has subsequently changed in view of the statements and actions of the current Home Secretary. I do not criticise such an adjustment of policy, I welcome it.

The present Home Secretary made a statement in response to the case of R. v. Secretary of State for the Home Department ex parte Pierson 1997. He made it clear that he would continue the practice of setting and reviewing adult murderers' tariffs. I hope that the Minister will tonight confirm that the Government's position remains the same.

7.50 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn)

My Lords, I commend the noble Earl, Lord Longford, on his tenacity. I believe that I should be entitled to particular spiritual reward because it is normally my leg that bears the imprint of his teeth marks when he has been so tenacious! I congratulate also the right reverend Prelate the Bishop of Blackburn on his persuasive and attractive maiden speech.

I recognise that the judges have always been uneasy about the mandatory life sentence for murder. In 1965, when the Bill which led to the abolition of capital punishment was being discussed, the then Lord Chief Justice proposed that the penalty for murder should be at the discretion of the trial judge. His view did not prevail. Most, if not all, of his successors have shared that view, supported by most, if not all, members of the higher judiciary. However, it is a fact that Parliament has not changed its view on that issue, which remains contentious, although it has had many opportunities to do so since 1965.

The noble Baroness is right in that in July of last year I gave an answer to my noble friend Lord Ashley of Stoke—and it remains government policy—that we have no plans to abolish the mandatory life sentence for murder. The question which the noble Baroness rightly identified for this evening is not whether there should be a mandatory life sentence for murder, but the more focused, and therefore necessarily more limited, question: how should that sentence be administered?

As the noble Lord, Lord Thomas of Gresford, indicated, prior to abolition of the death penalty for murder, the Secretary of State had the discretion—and the burden, as the noble Lord rightly said—of deciding on life or death, reprieve or not. Parliament thereafter, consonant with that historical scheme, put on the Secretary of State the responsibility to decide whether or not a mandatory life sentence prisoner should be released. Initially, the only statutory requirement was that he should consult the Lord Chief Justice and the trial judge, if available. The Criminal Justice Act 1967, which introduced the Parole Board, required the Home Secretary to refer life sentence cases to the Parole Board for its advice before ordering release on life licence. However, it was always the Secretary of State who decided if, whether, and when to refer such cases and he was not bound to accept the Parole Board's advice to release. That has remained the position throughout.

As the noble Lord, Lord Thomas, rightly pointed out, the principal change occurred in 1983 with the introduction of a tariff system by the then Home Secretary, Mr. Brittan. That has been amended following the decision by your Lordships' House in the case of Doody and others. A period is fixed at the beginning of the sentence to reflect the length of time to be served in custody for retribution and deterrence. The tariff, thus fixed, takes no account of future risk. It is the period regarded as necessary for punishment in all the circumstances of that particular case. It is set by the Home Secretary. The trial judge makes a report to the Home Secretary, with his recommendations. Every such recommendation is seen by the Lord Chief Justice who adds his comments and views. Those reports and judicial recommendations (excluding only references to future risk) are disclosed to the prisoner within a short time along with any other material which the Minister is to consider before setting the tariff. The prisoner can make recommendations which are then put before the Minister. That means that unless there is delay on the part of the prisoner, or an appeal against conviction, tariffs can be set reasonably quickly. We believe that that is an equitable system. Every murder case is therefore considered by the Lord Chief Justice and by the same Minister.

Perhaps I may put a counter argument to what has been the prevailing view tonight. In the case of Doody and others, which extended the rights of mandatory life sentence prisoners, the noble and learned Lord, Lord Mustill—I do not think that anyone can sensibly accuse him of lacking either experience or independence of mind and judgment—said: I can see no reason why the anomalous task of fixing a 'tariff penal element for an offence in respect of which the true tariff sentence is life imprisonment is one for which the Home Secretary and his junior ministers, informed by his officials about the existing departmental practice, are any less experienced and capable than the judges". That is a fairly authoritative statement of a view which I readily understand runs counter to most of the views expressed this evening.

The judicial views—of the trial judge and of the Lord Chief Justice—are advisory only, but normally the tariff is set within the judicial limits. Of 622 tariffs in new cases in 1994–97 only 36 were set higher than either judicial recommendation, and 35 were set lower. Where the tariff departs from the judicial recommendation, the prisoner is given written reasons. I have set out the tariff position in some detail because it is important to have the factual background correct, including the fact that on virtually as many occasions as the recommendation from the judges was increased, there were decreases. I repeat that there were 36 increases, with 35 decreases.

The Parole Board has no function at all in relation to the setting of the tariff. It seems to me that the general thrust of the Lord Chief Justice's concerns in giving judgment in Myra Hindley's case related mainly to the Secretary of State's role in setting tariffs. The tariff simply determines when the case first goes to the Parole Board. The first review by the board starts three years before the expiry of the tariff. The board is asked to advise on whether the prisoner presents a sufficiently low risk to the public to be released or to be moved to open conditions. Four members of the board consider the case on the papers. The prisoner sees all the papers beforehand. He can comment on them in writing and personally to a member of the board.

Every recommendation for release is considered personally by the Home Secretary. I concur with what the noble Lord, Lord Elton, said. It is not a burden which Home Secretaries welcome. In a sense, it would make their thorny bed rather easier if they did not have that responsibility.

Ministers do not always take the same view of risk as the Parole Board. The Home Secretary has broad constitutional responsibilities for public order and not least for that sometimes rather difficult creature, maintaining the public's confidence in the criminal justice system. If the release of a prisoner at a particular time might undermine public confidence in the criminal justice system, we suggest that it is reasonable for the Home Secretary to be able to defer that release. We believe that the Government, in the person of the Home Secretary, should continue to have the final word on the release of adults convicted of murder.

The position on discretionary life sentences is different. The circumstances of those sentences have been fully and, I believe, generally accurately recorded. The noble Baroness said that tariffs have been creeping up in terms of time served and that the average length of sentence is now about 15 years. In fact, the figure for 1997 is 14.2 years. That is the most recent figure available, but it is, of course, provisional. In the previous year, the average was 13.2 years, but the year before that was 14 years, and in the year before that it was 15.4 years. So the perception that there has been a gradual increase is not uniformly borne out by the facts. In 1993 it was 14.5 and in 1992 12.4. Obviously, different factors determine the number of years served, not simply the inevitable consequences of who said what at which party conference. I do not therefore trespass on your Lordships' time in respect of discretionary sentences.

A good deal of time this evening has expectedly and necessarily been devoted to the case of Myra Hindley. It is not proper for me to say much on that. My information is that the appeal against the decision of the Lord Chief Justice, Mr. Justice Hooper and Mr. Justice Astill remains to be heard. It is not constitutionally right that I should say too much. All I will say about Myra Hindley's case is that it turned out in 1987 that the two murders for which she was convicted and on which the tariff was based were the last two of five separate murders of children committed over a period of more than two years. All three Home Secretaries looked at the case in detail and concluded that a whole life tariff is warranted because of the gravity of the offences, leaving aside other considerations like risk.

Of the over 3,000 mandatory life prisoners in custody there are only 29 with whole life tariffs. As indicated earlier, the Home Secretary announced on 10th November that he would be wiling to review tariffs where there were exceptional circumstances including, I stress, exceptional progress in prison.

The noble Earl asked specifically whether the Home Secretary planned to consider seriously giving up his current involvement in tariff-setting for murderers. The Lord Chief Justice said, rightly if I may say so without presumption: There is room for serious debate whether the task of determining how long convicted murderers should serve in prison as punishment for their crimes should be undertaken by the judiciary .. or, as now, by the executive". As the noble Baroness observed, that is in large measure according to the Lord Chief Justice a political and constitutional question. I omit some words because the judgment is well known. The Lord Chief Justice goes on to say: But the applicant [Myra Hindley] has, no doubt wisely, made no accusation that any Home Secretary has acted in had faith". That is the sober conclusion at which the Lord Chief Justice has arrived and I believe that it is worth repeating. We believe that in some circumstances in the general public interest the Home Secretary needs to retain these powers. We are more than content to hold the serious debate for which the Lord Chief Justice has called. The first chapter in that debate, which will continue for a long time, has begun and ended this evening.

I should like to deal with one particular matter referred to by the noble Lord, Lord Rowallan. He was concerned about the spelling out of sentences and whether the public was left in doubt. I am sure he will be pleased to learn that as recently as 22nd January of this year the Lord Chief Justice issued a practice direction to judges to ensure that courts spell out what sentences really mean in practice so that the offender, the victim and all those concerned with the case, including the wider public, know the effect of a particular sentence. I pay tribute to that step by the Lord Chief Justice, it being remembered that almost the first words that I uttered when I began this job were that we wished to restore a decent regard for the opinions of the higher judiciary. That adamantly remains the policy of the Home Secretary.

I have not satisfied everyone in this House, but that is the response that the Government give and presently maintain.

House adjourned at four minutes past eight o'clock.