Powers of Criminal Courts (Sentencing) Bill [H.L.] (Hansard, 11 April 2000)

§ The Lord Chancellor (Lord Irvine of Lairg)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Irvine of Lairg.)

§ Lord Lester of Herne Hill
I have given notice to the noble and learned Lord the Lord Chancellor and to the Clerk of the Parliaments that I should like to raise the question of the compatibility of Clause 90 with Article 6 of the European Convention on Human Rights. Clause 90 consolidates Section 53(1) of the Children and Young Persons Act 1933, as amended, and continues to provide that, Where a person convicted of murder…[was] under 18 at the time the offence was committed, the court shall (notwithstanding anything in this or any other Act) sentence him to be detained during Her Majesty's pleasure", without having the duty to set the tariff in open court. The power of fixing the tariff remains in the hands of the Minister, not the judiciary.
89 The clause may be incompatible with Article 6, paragraph 1 of the European convention. On 16th December 1999, the European Court of Human Rights gave judgment in the Venables case. It decided that it is a breach of Article 6, paragraph 1 of the convention for Ministers, as members of the executive, to set tariffs for juveniles sentenced to detention at her Majesty's pleasure. To give effect to that judgment, it is necessary for tariffs to be set by the trial judge in open court, in the same way as they are currently set for adults subject to discretionary life sentences.
This valuable consolidation Bill contains the Lord Chancellor's statement under Section 19(1)(a) of the Human Rights Act 1998 that, in his view, its provisions are compatible with the convention rights. Unfortunately, almost 18 months after the Human Rights Act received Royal Assent, there is still no parliamentary Select Committee to scrutinise such ministerial statements of compatibility. However, on 28th March, the Joint Select Committee on Consolidation Bills published its report on this Bill. The committee is chaired by the noble and learned Lord, Lord Clyde. The Select Committee drew the special attention of this House and of the other place—which is why I am on my feet now—to the question of the Bill's compatibility with convention rights in the following terms: This is the first instance of a consolidation bill being brought forward after the passage of the Human Rights Act 1998, and in accordance with that Act the Lord Chancellor has made a statement that in his view the Bill is compatible with the Convention rights. We considered this point with the assistance of officials from the Home Office, recorded in the Minutes of Proceedings printed with this report, and draw attention to the concerns expressed about the compatibility of clause 90 of the Bill. As this is a consolidation bill, any non-compatibility cannot be rectified in the Bill itself. However, we understand that the issue is likely to be addressed in amendments which the Government intend to table to the Criminal Justice and Court Services Bill". To the best of my knowledge, no amendments have as yet been tabled. I share the concern expressed within the Select Committee about the compatibility of Clause 90 with convention rights. Clause 90 as it stands seems to require the courts to continue to act in breach of Article 6(1) of the convention, despite the judgment of the European Court in Venables. In those circumstances, I should be grateful if the noble and learned Lord the Lord Chancellor would inform the House of his reasons for considering Clause 90 as it stands to be compatible with Article 6 of the convention and of the Government's intention in the matter.

§ The Lord Chancellor
I am grateful to the noble Lord, Lord Lester of Herne Hill, for giving me notice of his question. The same point was raised by the noble and learned Lord, Lord Hobhouse of Woodborough, when the Joint Committee considered the Bill. I am sure that the noble Lord will accept that I am aware of the importance of statements of ECHR compatibility by Ministers when they introduce legislation. Ministerial statements, however, are to the effect that the legislation in question is itself compliant.
90 The European Court of Human Rights held in T and V v United Kingdom that the setting of a tariff by the Home Secretary, where a young person had been sentenced to be detained during Her Majesty's pleasure, contravened Article 6 of the convention, in that the Home Secretary is not an independent tribunal, as a court is. As Members of the Committee will be aware, the Government will bring forward amendments to the Criminal Justice and Court Services Bill this Session in order to rectify that breach. The European Court of Human Rights did not, however, find that the passing of the sentence by the domestic court was unlawful.
I accept that it is arguable that the setting of the tariff can be said to be an inevitable consequence of the sentence, so as to make the sentence itself objectionable. But the test to be applied when a Minister considers whether to make a statement of compatibility under Section 19 of the Human Rights Act is not that no argument can be raised about compatibility. The test is on balance, whether it is likely that the provisions of the Bill will be found by a court to comply with the convention rights. In my judgment that is the likely outcome if the matter were to be tested in the courts.
The Bill consolidates the power of the courts when passing sentence in criminal cases. Clause 90 provides that, where a person under 18 is convicted of murder, the court shall…sentence him to be detained during Her Majesty's pleasure". That re-enacts part of Section 53(1) of the Children and Young Persons Act 1933. It does not deal with the working out of that sentence. It does not include the provisions which deal with the setting of the tariff, which are contained in the Crime (Sentences) Act 1997 and which will, as I have said, be amended by another Bill during this Parliament, if Parliament so decides. We are not addressing a statement as to whether the relevant provisions of that statute are compatible.
Pending the making and coming into force of those amendments, my right honourable friend the Home Secretary has announced that, on an extra-statutory basis, he will obtain and abide by the views of the court when setting tariffs in such cases. I understand that the noble and learned Lord, Lord Hobhouse, is satisfied that that will resolve the problem, obviously not permanently, but for the time being. It appears to me that if a change in the practice of the Home Secretary is sufficient to remedy the situation for the time being without any change being made to the legislation on the passing of the sentence itself, then that legislation, by itself, is not incompatible with Article 6. I do of course accept that the point raised by the noble Lord is an important one.

§ Lord Lester of Herne Hill
Perhaps I may simply express gratitude for that full answer and optimistic hope that that is the last time I shall have to intervene 91 in such a way because there will be a parliamentary Select Committee to deal with it in a much more orderly way in future.