Life Sentences (Northern Ireland) Order 2001 (Hansard, 12 July 2001)

§ The Minister of State, Department for Transport, Local Government and the Regions (Lord Falconer of Thoroton)
rose to move, That the draft order laid before the House on 26th June be approved [First Report from the Joint Committee].
The noble and learned Lord said: My Lords, the Life Sentences (Northern Ireland) Order establishes new arrangements for the review and release of life sentence prisoners in Northern Ireland. Its key features are, first, the appointment of life sentence review commissioners to consider the cases of all life sentence prisoners; secondly, the setting of a "tariff" by the court which represents the punitive element of the sentence after which release can be considered by the commissioners; thirdly, the power of the commissioners to direct the release of a prisoner on completion of the tariff period subject to the requirement that release would not present a risk to the public; fourthly, the attachment of licence conditions by the Secretary of State on the prisoner's release; fifthly, the power of the Secretary of State to revoke a prisoner's licence and recall him to prison; and, sixthly, through the underpinning rules, the entitlement of the 1216 prisoner to a hearing of his case, including legal representation, when being considered for release by the commissioners.
Copies of the draft statutory rules have also been made available. They are called the Life Sentence Review Commissioners' Rules 2001. They underpin the operation of the legislation. I have provided those rules simply to ensure as much understanding of the draft order as possible. However, I do not propose to deal with the draft rules in today's debate. They will be formally put before Parliament by negative resolution.
Your Lordships will be aware that we have a second draft order for consideration today, which is a consequential amendments order. That provides for minor, technical adjustment of UK legislation in light of the main order itself. I propose to cover the draft Life Sentences (Consequential Amendments) Order at the appropriate point in my speech, and then move its consideration separately at the end of this debate.
There are two reasons why the Government are bringing forward new proposals in this area: first, the commencement of the Human Rights Act on 2nd October last year; and, secondly, as a result of the report of the review of the criminal justice system in Northern Ireland, completed as part of the Good Friday agreement and published last year.
In anticipation of the implementation of the Human Rights Act, the Government undertook a review of Northern Ireland prisons law and practice with a view to ensuring Human Rights Act compliance. The review revealed that current procedures in place to deal with prisoners sentenced to life imprisonment in Northern Ireland might be inconsistent with the requirements of the Human Rights Act.
Legal advice suggested that compliance would require that, once the punitive element of the sentence has been completed, such prisoners should have their cases subject to periodic review by an impartial and independent body, established by law and with specific power to give a legally binding direction concerning the prisoner's release.
The report of the Northern Ireland Criminal Justice Review endorsed that view. The lack of openness of Northern Ireland procedures was commented upon; that is to say, an executive Life Sentence Review Board advising the Secretary of State who then consults with the Lord Chief Justice. The Secretary of State then makes the final decision on all releases. The Criminal Justice Review recommended that an independent body should make such decisions based on risk to the public.
The Government are now proposing to introduce arrangements whereby all life sentence prisoners have the punitive period of their sentence clearly identified in law, and their case for release independently assessed and directed at the appropriate time by an independent body of judicial character. In essence, the proposals will establish for Northern Ireland arrangements for life sentence prisoners similar to the Parole Board system in England and Wales.
1217 Perhaps I may give a very brief description of the key provisions of the order. It contains 13 articles and three schedules. However, I shall briefly focus on five articles. Article 3 provides for the appointment of life sentence review commissioners and defines the factors which underpin commissioners' functions. Expertise in the fields of law, psychiatry, psychology, criminology and the rehabilitation of offenders are the key skills necessary for the assessment of life sentence prisoners for release.
Article 5 provides for the setting of the tariff by the sentencing judge. The "tariff is the period of retribution and deterrence, sometimes known as the "punishment part" of the sentence, which the judge will order in court on conviction.
Article 6 provides the arrangements for the release of life prisoners. On completion of the tariff, cases will be referred to the life sentence review commissioners who will consider detailed case histories and dossiers. They will have the power to direct release provided that there would be no serious harm to the public.
Article 8 provides arrangements for the Secretary of State to impose life licences on release which may require post-release supervision by a probation officer.
Article 9 provides for the recall of life sentence prisoners, either directly by the Secretary of State or on the recommendation of the commissioners. In all recall cases prisoners will be advised of the reasons for their revocation and told that they can make representations. All recalls will be referred to the commissioners for consideration and direction.
The remaining articles provide arrangements for specific issues—compassionate release, transferred prisoners—as well as incorporating current life sentence prisoners and licensees into the new legislation.
I turn to the consultations the Government have conducted on the order. The proposal was laid before Parliament on 15th January this year. We invited the Northern Ireland Assembly to consider it. We took the opportunity to copy it for comment to organisations with an interest in this policy area. The Northern Ireland Grand Committee debated the proposal on 22nd March. A statement summarising the responses to the proposal, and a further statement of the changes made as a result of these, has been laid before Parliament along with the draft order.
The Government's proposals were widely welcomed. Respondents commented favourably on the proposals for the appointment of commissioners and the setting of tariffs in court. Respondents also made a series of points of detail on individual provisions. I shall not review each individual representation as that would take much too long. I propose to advise your Lordships of the four overarching issues which arose during the consultation process and of our responses to them. The four issues were: first, human rights compliance; secondly, victims' rights; thirdly, ministerial guidance and directions; and, fourthly, implementation. I also 1218 propose to say a few words about the independence of commissioners. That matter was raised by a number of respondents.
First, I turn to human rights compliance. During consultation it was stated that our legislative proposals should comply with current UK and European Court Human Rights law. Human rights is the very basis of the proposals that we have developed. Perhaps I may remind your Lordships of the core provisions of the order. They were the setting of tariffs in court; the establishment of an independent body of experts with the skills required specifically identified; the hearing of prisoners' cases for release at which they can be legally represented; and the provision of legal aid. The order is human rights driven and the rights of prisoners are fully covered. It is the Government's view that the provisions contained in the draft order are compatible with convention rights.
Secondly, I turn to victims' issues. Representations were made that victims' or their family's rights should be acknowledged and reflected in the legislation. Victims' interests will be catered for. Their views will be sought and made available as part of the review and release process. Indeed, that is already the case. Any victim or his family who wants to be advised of a life prisoner's release can register his interest and be kept advised where appropriate. Under the proposed legislation, that will be enhanced in law to allow victims' views to be provided to the commissioners when they are considering final release. Views will be obtained and provided by the Probation Service.
Victims' needs and interests are obviously issues facing the criminal justice system as a whole. In addition to its recommendations on life sentence prisoners, the Criminal Justice Review made important recommendations in that area. As a government, we shall be looking at ways to further cater for victims' interests. Many victims prefer to put difficult events behind them and to move on. Therefore, across all these arrangements it will be at the discretion of the victim or his/her family.
Thirdly, I turn to ministerial directions and guidance. Representations were made during the consultation suggesting that the Secretary of State should have the power to issue directions or guidance. We accept that there will be a need for Ministers to make clear certain procedures which will apply. An obvious example is guidance for life prisoners on the process. Arrangements for victims to register their concerns, and advising licensees on the conditions of their release, are others. But issuing guidance has, in itself, no statutory authority. Therefore, to provide for guidance in law would have no substance. We recognise the need, and will address it administratively. Officials will be producing and making available guidance notes on all relevant areas to prisoners, victims and the criminal justice system in general.
With regard to the suggestion that Ministers should issue directions, I remind your Lordships that the proposals before the House today are to establish an independent sentencing and review process.
1219 Independence is the key feature. Ministers should not, for example, be directing the commissioners on how to make decisions. Such a step would quite simply run contrary to the concept of independence. It will be for the commissioners to establish standards in their release decisions, guided by the extensive domestic and international case law already in existence.
I turn to implementation. Representation was made that there should be meaningful consultation with relevant organisations prior to the implementation of the legislation. Consultation has already been taking place as our proposals have been developed. We have worked closely with relevant criminal justice agencies, and through the consultation period, our proposals were made available to more than 200 interested parties or groups.
To ensure smooth introduction, my officials will continue to consult with relevant bodies. It is our intention to develop working protocols with and between criminal justice agencies and to encourage a similar approach with the new commissioners. We will also keep prisoners fully advised of progress and we will be working to ensure that all relevant staff are aware of and trained in the new procedures.
Perhaps I may move on to the independence of commissioners. Some respondents seemed concerned that commissioners' independence should be emphasised. Commissioners' independence is provided for in a variety of ways. The draft order establishes commissioners in law and provides them with specific power to give a legally binding direction concerning the prisoner's release. If release is directed, then the Secretary of State must comply. Commissioners will be appointed by open competition. Appointment will be for a period of five years, which is renewable subject to the provisions of the order. If a commissioner were to be considered for dismissal, this can be done only with the agreement of the Lord Chief Justice. The professional expertise of the commissioners is specified in the legislative proposals. Legal qualifications, professional qualifications, and expertise in the rehabilitation of offenders are all provided for. These will be important in establishing credibility, acceptability and professional independence. There is no question of the commissioners' independence.
Before concluding, I should like to deal with the need for a separate statutory instrument—the draft Life Sentences (Northern Ireland Consequential Amendments) Order 2001—to provide for the amendment of related UK legislation. The reason for the Life Sentences (Northern Ireland Consequential Amendments) Order is simply that an order made under Section 85 of the Northern Ireland Act 1998—which provides the legislative vehicle for the main life sentences order—can amend legislation only as it applies to Northern Ireland. The Section 84 order is a technical requirement, needed to amend legislation as it applies in England and Wales. It provides for the inclusion of references to the life sentences order in the Repatriation of Prisoners Act 1984, the Crime (Sentences) Act 1997 and the International Criminal Court Act 2000 which provide various transfer and repatriation arrangements within and to the United 1220 Kingdom. The order also provides for the inclusion of references to Life Sentence Review Commissioners in the Freedom of Information Act as a group to whom the Act will apply.
I shall conclude my speech by reminding your Lordships of the reasons for the Government's proposed Life Sentences (Northern Ireland) Order—the need for compliance of life sentence review and release arrangements with the Human Rights Act: and the recommendations of the review of the criminal justice system in Northern Ireland. It is the Government's view that the time has come in Northern Ireland to transfer responsibility for review and release of life sentence prisoners out of the hands of Ministers. With Parliament's approval, life sentence prisoners in Northern Ireland will have their "tariff' set in court; will be referred to the independent Life Sentence Review Commissioners; and will have their release considered at the appropriate time based on the avoidance of risk to the public. The commissioners will have relevant professional and expert knowledge to enable them to take such decisions. Prisoners will be entitled to a hearing of their case at which they can be legally aided and represented.
I am confident that the system we are proposing caters for the needs of society and of victims and ensures the rights of prisoners. I commend the order to the House.

§ Lord Glentoran
My Lords, I thank the noble and learned Lord for bringing the order before the House. In principle, I have no argument with it. It was well debated in another place. I have read the Hansard report thoroughly. My honourable friend Mr John Taylor asked a number of pertinent questions concerning independence, human rights and other matters to which he received satisfactory replies. I have no difficulty in supporting the order.

§ Lord Laird
My Lords, I have no difficulty in supporting the order. I prefer the concept of an impartial commission looking after this type of activity rather than it being open to political pressure. There is nothing more unattractive in society than a lynch mob, which may be organised through the local tabloid press which is on the case of some unfortunate person. I am satisfied with the concept of an impartial body. I am pleased to hear that membership will last for five years. How many commissioners are there likely to be? I support the order.

§ Lord Falconer of Thoroton
My Lords., I am extremely grateful to noble Lords for their support for the order. I was asked how many commissioners there will be. The answer is 15 to 20 depending on business.