House of Commons Hansard Debates for 25 Jun 1991

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want to try to analyse the true reasons behind the Lords opposition and the Government's opposition to the improvement, which has everything to commend it in terms of rational reform.

I suspect that the Government resist change because of what they believe to be public opinion and because they fear a reputation for being soft on murder and murderers. In that suspicion and in that fear, they are not only mistaken but categorically mistaken. The system proposed by the House of Lords would clearly focus attention on the properly severe--by that I mean suitably long--sentence for those who are found guilty of the horrendous murder. It would focus attention on those men and women who, having committed murder, should, in the general opinion of the House, go to prison for 20 years or more. It would ensure that they do so and are sentenced to that long period in prison by the public court and against a background of headlines and reporting.

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The improvement would also calm public opinion in another sense. There is a widespread notion that the life sentence lasts, on average, from 10 to 12 years. I have no doubt that there is much resentment at the idea that a man or woman may commit a horrendous murder and be in prison for barely a decade. However, when the public complain about such a 10-year sentence, they do not complain about girls who kill their brutal fathers, but about terrorists who slaughter innocent bystanders. By lumping those different crimes together and producing a crude average of 10 or 12 years, we undermine people's confidence in the undoubted fact that the worst murderers should serve an appropriately long period in prison.

On the grounds of rational argument and sensible examination, there is everything to be gained in terms of liberty, deterrence and assuring public opinion, in focusing attention on the real sentences received by real murderers for truly wicked crimes. To perpetuate present policy is to blur the distinction and allow the British public to believe that we are soft on murder in general. We should demonstrate how hard we are on murderers who generally deserve a substantial period in prison.

There are other sectors where change is needed, but to make the proposed change would be one more attempt to bring British penal policy into line with that of other civilised countries. In this matter, as in other particulars. we are hideously out of line. In 1990, there were 3,503 life sentence prisoners in United Kingdom gaols--3,054 in Great Britain and the rest in Northern Ireland. There were more life sentence prisoners in British gaols than in all the rest of western Europe added together, where the total of life sentence prisoners was 2,688. That is partly as a result of our failure to distinguish between those convicted of murder who should receive the longest conceivable sentences and those who should not.

Mr. Michael Shersby (Uxbridge) : I am listening with great interest to what the right hon. Gentleman has to say. Will he comment on the Home Secretary's point that it would be necessary for a court to pass a sentence of 60 years in the case of a terrible murder for the defendant to spend half that period in prison? Does the right hon. Gentleman believe that the courts of this country would,

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in those cases, be willing to pass sentences of that length? That is a matter which causes concern to many of us who are listening with great interest to the debate.

Mr. Hattersley : There are two answers to that question. If the Home Secretary wants to ensure that long prison sentences for the worst murders, as I have described them, are served, he should come to the House not with a proposal to abandon the Lords amendment, but to make adjustments to give it the practical reality that he says it lacks. I wonder whether even that would be necessary.

The hon. Member for Uxbridge (Mr. Shersby) asked whether judges would be prepared to impose sentences of the sort now necessary. It is clear that they would, as they said so in the House of Lords, where Law Lord after Law Lord rose to propose the system. We must assume that the Law Lords understand the ramifications of the law at least as well as the Home Secretary. They knew the technique that was necessary to achieve the proposed aim and were perfectly willing to apply it--indeed, they were as passionately anxious that it should be incorporated in the law.

Mr. Peter Archer (Warley, West) : Will my right hon. Friend confirm that there is nothing in the Lords amendment to preclude a judge from passing a life sentence in the appropriate case?

Mr. Hattersley : As my right hon. and learned Friend knows and I have tried to explain, the effect of the amendment would be quite the opposite. Its purpose, which is why we support it, is to ensure that life sentences would be passed where appropriate, with all the advantages in terms of deterrence and public opinion-- [Interruption.] I shall not give way again, because I know that the House wants to make progress. I think that I have already spoken for slightly longer than the Home Secretary. I have two minutes' worth of other comments to make, and hon. Members can then attempt to catch your eye, Mr. Speaker, if they want to make their own contributions.

The Lords proposal is a rational, sensible and practical way forward. It is not surprising that the Butler committee on abnormal offences in 1975, the Advisory Council on Penal Systems in 1978, the Lords Select Committee on murder and life imprisonment in 1980 all supported this reform. Indeed, in 1980--over 10 years ago--members of the Criminal Law Revision Committee were equally divided on whether the reform should be made. According to the Lords debate, I cannot comment on whether that was a correct judgment. Were they to consider the matter now, they would undoubtedly support the Lords view. The simple argument is that murder varies enormously in viciousness, moral culpability and mitigating circumstances. To suggest that a mercy killer should receive the same sentence as a hired assassin and that that sentence should then be adjusted in private by a Minister working on his own discretion, without any evidence or arguments in front of him, is a clear denial of civil rights. We should have a more practical and more principled proposal.

The House of Lords was making and suggesting progress and we shall support it in the progress that the amendment would clearly bring to the Bill.

Sir Peter Emery (Honiton) : First, I congratulate my right hon. Friend the Home Secretary on what I thought was support for a case that is widely accepted throughout

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the country--the fact that people expect all forms of murder, heinous and terrifying as they are, to receive the maximum sentence that the courts can give.

I rise to draw to the attention of the House the fact that the Leader of the House has, as quickly as possible, arranged for an experiment to be carried out during this debate, in accordance with the recommendations contained in the second report of the Select Committee on Procedure. I hope that hon. Members will look at the way in which amendments are now marshalled and will note that for the first time the order paper shows the Government's view on the amendments. We never knew their view as papers were marshalled in the past. There is now just one order paper rather than the three with which we had to deal in the past. I hope that the House will approve of the experiment. Whether the Leader of the House decides to carry the idea forward will depend on the views expressed by hon. Members, so I hope that they will convey their views to the Leader of the House.

I sincerely support the view taken by my right hon. Friend the Home Secretary. I understand the arguments put by the Shadow Home Secretary, but they seem to be out of touch with the feeling of people in most constituencies--[ Hon. Members :-- "What about the Law Lords ?"] Some people do not always believe that the Law Lords are in touch with ordinary people. Indeed, some hon. Members believe that they should not be there at all because they are so out of touch. I shall not follow that argument, but I believe that the House should support the line that my right hon. Friend the Home Secretary is taking today.

Mr. Archer : I have the misfortune to differ from the hon. Member for Honiton (Sir P. Emery) about the merits of the debate, but I echo his comments about the new marshalling of the amendments on the order paper. There, at least, there seems to be some common ground across the Chamber.

The arguments on this subject have been deployed at various stages in the Bill's progress, here and in another place. They have just been deployed persuasively by my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley). I rise only in the hope that, even now, it may not be too late.

I do not pretend that I can adduce any original arguments at this stage. My right hon. Friend the Member for Sparkbrook said that he hoped that the Home Secretary might listen and answer some of our arguments--I hope that he will do better than that, and that he will listen to some of our arguments and consider them.

Four principles are fundamental to our penal system, and they apply to every case. First, no one should receive a sentence greater than he deserves unless it is necessary to protect the public. That is the very principle running through the Bill--we have been reminded of it again and again from the Government Front Bench during debates on the Bill. That philosophy runs right through the system and applies, however grave or however venal the offence. An offender may have committed a horrifying and wicked offence and may be held to deserve a sentence of 20 years, but the principle still holds that he ought not to receive a sentence of more than 20 years, unless it is necessary to protect the public.

If that principle is to be applied, it is essential that we know what length of sentence he deserves so that it is known at what point we may be justified in considering

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whether a further sentence is necessary to protect the public. That will be the subject matter of our next debate, but I am a little disappointed that, having accepted that principle, the Government are applying it only to discretionary and not mandatory life sentences.

Mr. John Bowis (Battersea) : I sought clarification from the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) about Opposition Members' arguments, and my argument was precisely the same as the hon. Gentleman's on the difference between the protection of the public and a deterrent. I entirely understand the view on heinous crimes to which he referred. I doubt whether a capital or a life sentence ever deterred anyone --people will still commit such crimes. Such sentences may help to deter people from committing the lesser types of murder that the right hon. Member for Sparkbrook described. However, surely it is worth protecting the public if it deters some people from committing that type of murder, given that those people are also protected by judges' recommendations and by the Home Secretary's discretion when listening to those recommendations.

Mr. Archer : With respect, the hon. Member for Battersea (Mr. Bowis) has misconceived what is meant by protecting the public in this context. What is meant by it in the Bill is imposing a sentence longer than the offence deserves, because it would be dangerous to let the offender out. That is rather different from the deterrent argument, and if the hon. Gentleman will forgive me, I shall return to that argument later.

If we are to incarcerate someone for longer than he deserves, we should at least know at what point we are considering incarcerating him for longer than he deserves. That seems to run right through our penal system and seems elementary. The Government have accepted that argument in relation to our next debate.

In that situation it must preclude our disposing of two cases, as my right hon. Friend the Member for Sparkbrook said, which might have different motivation, intention and wickedness--for example, the deliberate and heartless killing of a total stranger for gain, compared with the mercy killing of a beloved relative--in the same way. If we appear to do so in the court, it cannot be said that no one will serve a sentence longer than they deserve.

The second principle, to which my right hon. Friend the Member for Sparkbrook alluded, is that assessment of the appropriate sentence should be carried out by a judge, as a judicial exercise, and it is not an appropriate function for the executive. The rules according to which sentences are assessed are decided by the legislature and proposals are introduced by the Executive. Maximum sentences are laid down in that way. But, the decision on individual sentences properly belongs to the courts.

We are told that the public have strong views on these matters--we were told that yet again this afternoon. I am not sure what evidence we have heard for some of the opinions that have been expressed about the views of the public--perhaps we do not all meet the same members of the public. But whoever is in government and however well respected that individual might be, I am certain that the public are rightly suspicious of a member of the Government, who is subject to all kinds of political pressures, deciding the fate of individuals. That is why we

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have got into difficulties when leaving to the Secretary of State the question of which convictions should be left to the courts and which should be overturned.

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The third principle is that the assessment of what is an appropriate sentence should be made by someone who has heard submissions on behalf of the offender and has seen whatever evidence can properly be submitted on his behalf. It is far preferable for that assessment to be made by the judge who has heard all the evidence in the trial. I do not believe that it would be acceptable to the public for such an assessment to be made by a politician or an official who has never even seen the offender-- [Interruption.] The Secretary of State appears to be trying to drive a wedge between Opposition Members. I do not know whether evidence of that will emerge later. It is not a question of who is the Home Secretary or the junior Minister of the time who makes the assessment or of who is the official who makes the recommendation because, as far as the public are concerned--and they are right about this--the point is that those people are subject to political pressures that would not apply to the judiciary.

Mr. Kenneth Baker : As the House knows, the right hon. and learned Gentleman was a distinguished Solicitor-General for five years. Did he hold those views then?

Mr. Archer : Yes, I did--and not only did I hold them, but I expressed them on a number of occasions. The constitutional position remains the same, whoever is in government.

Mr. Baker : I am simply saying that there were five long years during which the changes that the right hon. and learned Gentleman is now advocating could not only have been brought to the attention of the Government, but could have been implemented. If the right hon. and learned Gentleman felt so strongly, was he not in a strong position, as Solicitor- General, to make those changes?

Mr. Archer : I shall come in a moment to the events that have occurred since the right hon. and learned Gentleman and his colleagues came into government, the number of people who have considered those events and the recommendations that have been made. If we had been in a position to consider all that, we might have reached a different conclusion.

My point is that whoever makes the decision now may have read written submissions, especially if the offender is articulate or has someone who is articulate to speak on his behalf, but that is no substitute for an oral process during which the judge can say which matters are troubling him and when those points can be answered by the advocate for the offender.

The fourth principle is that that process of hearing submissions and assessing the appropriate sentence should take place publicly. Again, my right hon. Friend the Member for Sparkbrook alluded to that. Offenders and the public are entitled to hear what is being said, to be assured that the judge has listened and to be told by the judge what assessment he has made.

Under the present system, the judge writes his assessment secretly and the Lord Chief Justice makes a further assessment in the interests of consistency which, as has already been said, adds to the already burdensome

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tasks facing him. Everything is secret up to that point--and the matter is then considered in secrecy again by someone at the Home Office. That person may disagree with the judge's assessment. In 1988, a Home Office Minister took it upon himself to increase the judge's assessment for 63 out of 106 mandatory sentences. The offenders were not to know that the Minister had disagreed with the judge, because they did not know what the judge had said in the first place. Not only is justice not seen to be done, but the offender embarks on his sentence without any idea of what the judge has assessed as the appropriate period for him to serve.

Since we first debated this issue in the House, we have all had the advantage of reading the Woolf-Tumim report. Fundamental to the recommendations of that report on the philosophy of the criminal justice system is the concept that prisons are part of the system of justice and that what happens to prisoners must be just and must be seen to be just. Yet this is the negation of justice.

On reading the debate in another place, I too was a little troubled by something that was said on behalf of the Government by Lord Waddington. He seemed to say that public confidence in the system might be shaken if the public knew the facts and the assessments that the judges were making. The suggestion that it is best to keep the public in ignorance because if they knew the facts they might misunderstand, is hardly one that we might expect to hear made on behalf of the Government in a democracy. Surely the public would be more reassured if they knew that the judge meant what he said in open court and that, when he recommended a life sentence, he meant that there should be a substantial sentence.

I am surprised that the amendment which the Government are introducing to meet the ruling of the European Court is confined narrowly to discretionary life sentences. I should have thought that the argument that operated for discretionary life sentences operated equally strongly in the case of mandatory life sentences. I made passing reference to the events that had happened since we were last in government. It is perfectly true and I accept at once that in 1975 the Butler committee on mentally abnormal offenders recommended the proposal which has now been made by another place, and in 1978 the recommendation was repeated by the Advisory Council on the Penal System. But the proposal was reiterated by the all-party penal affairs group in 1986 and by the Select Committee under the chairmanship of Lord Nathan in 1988. Since then, the proposal has been supported by two former Home Office Ministers--Lord Windlesham and Lord Harris, Justice, the Quaker Council for European Affairs, the Lord Chief Justice and three Lords of Appeal. I should have thought that that was sufficient for the Government to allay any fears on the part of the public that the matter had not been properly considered.

One other benefit has been alluded to by my right hon. Friend the Member for Sparkbrook. If someone were seen publicly to address the degree of guilt and, consequently, the appropriate sentence, it would dispense with the need to make what many people may feel is an artificial distinction between murder and manslaughter by reason of diminished responsibility. We know the amount of court time and the resources which are diverted to making that distinction. It is not an appropriate distinction.

The distinction that should be addressed is between a case which deserves a long sentence and one which does

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not. As my right hon. Friend said, it may be that the distinction distorts the system because we are receiving convictions for manslaughter where the appropriate conviction would be for murder. Undoubtedly that was what persuaded victim support and the Group for Parents of Murdered Children to support the proposal.

I am conscious of the passage of time, but I promised the hon. Member for Battersea that I would say a word about deterrence. For the most serious murders--the really wicked murders--long sentences will be given in any event. Any argument based on deterrence will apply equally to such cases. But where murders are committed under the stress of great emotion, I do not believe that people sit down and consider the sentence that they are likely to receive. That is the answer to the argument based on deterrence.

The last argument adduced--I almost said "dredged up" but I do not wish to be offensive--by the Secretary of State was that when, in December, the House decided by a substantial majority not to reintroduce the capital sentence for murder, some hon. Members may have voted against because the alternative was a mandatory life sentence. If that is a valid argument, it would rule out all proposals for change on any matter which may have influenced any hon. Member when the House took a decision. So a simple method of strangling all proposals for reform on any topic, for that Parliament at least, would be to introduce any single proposal which is voted down.

The Minister of State, Home Office (Mrs. Angela Rumbold) : That is too lateral. [Interruption.]

Mr. Archer : If the hon. Member for Honiton (Sir Peter Emery) wishes to adduce further lateral arguments, he may do so. The proposal may or may not mean that sentences are generally shorter. It may very well mean that some sentences are longer. No one argues that in an appropriate case there should not be a long sentence. But the proposal would mean that any individual sentence would be related, and manifestly seen to be related, to the merits of the case. That is what justice is about.

Mr. Shersby : As the House knows, I am parliamentary adviser to the Police Federation of England and Wales and I wish to declare that interest this afternoon.

The House will be aware that there is a thin blue line standing between evil men, and sometimes women, and the law-abiding citizens of this country. That thin blue line is the men and women of the police. Sometimes, tragically, that line is broken when police officers are murdered while protecting the public from the actions of vicious criminals and ruthless killers. When that happens the line is quickly joined as other officers take the place of their fallen comrades.

As my right hon. Friend the Home Secretary has said :

"At the core of the crime of murder is the intentional taking of another person's life--that is killing someone with intent to kill or do grievous bodily harm."

My right hon. Friend also reminded us

"It is a crime of dreadful finality."

I agree.

What protection do the police have against the intentional taking of lives by, for example, armed criminals who do not hesitate to shoot them down in the street? Until 1965 the death penalty existed, which most

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police officers consider a powerful deterrent to murder. However, Parliament abolished that penalty 26 years ago and in its place provided the life sentence for murder.

One of the first major tests of the use of long sentences for the murder of a police officer occurred in 1966, only a year after the abolition of the death penalty. It was found to be wanting. Let me remind the House of what happened on a summer's afternoon in Braybrook street off Shepherd's Bush. Three policemen in an unmarked car became suspicious of a blue Standard Vanguard estate car parked near Wormwood Scrubs and they approached that vehicle. While one of the occupants of that car was being questioned--John Edward Witney was his name--another occupant, Harry Roberts, pulled out a gun and shot dead Detective Sergeant Christopher Head and Detective Constable David Wombwell. Another occupant of the car, John Duddy, then ran to the police car and shot Police Constable Geoffrey Fox in the head as he sat behind the steering wheel.

I remember that case very well because it so happened that I lived and worked in the area at the time. All three men were eventually caught, arrested and given life sentences for murder in 1966. At the trial, the late Mr. Justice Glyn-Jones said :

"I think it is likely that no Home Secretary regarding the enormity of your crime will ever think it fit to show mercy by releasing you on licence. This is one of those cases in which the sentence of imprisonment for life may well be treated as meaning exactly that." He went on to say :

"Lest any Home Secretary in future be minded to consider your release on licence, I have to make a recommendation."

He recommended a sentence of imprisonment for 30 years. As a result partly of that trial--many of us remember it and the loss of the lives of those three Metropolitan police officers--and the 30-year sentence that was awarded, the police, although they still wanted the return of the death penalty, felt that in the absence of that penalty they could at least rely upon the firm assurances of the Home Secretary of the day that no offender imprisoned for the murder of an officer would be released until the sentence had been completed.

Those assurances were confirmed subsequently ; first by my right hon. Friend the Member for Witney (Mr. Hurd) when, as Home Secretary, he told the Police Federation conference in 1989 :

"Since capital punishment was abolished in 1965, the Conservative view of the murder of police officers has been proved by a single telling fact ; in that time not one person convicted of murdering a police officer has been released from prison."

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I well remember when my right hon. Friend said that, because I had just been appointed as parliamentary adviser to the Police Federation. I remembered that conference as it occurred early on in my new job.

A year later my right hon. and noble Friend, Lord Waddington, who was then Home Secretary, said to the Police Federation conference : "Parliamentary policy is that offenders imprisoned for the murder of a police officer will not be released until their sentence is completed."

As a result, the federated ranks of the police gradually came to accept that their best protection, in the absence of the death penalty, was such assurances together with the belief that only as a result of the executive action of the Home Secretary of the day could those who had murdered

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police officers be released. The police believed that those found guilty would either complete long sentences or be detained in prison for, as my right hon. Friend, the present Home Secretary, said today "the rest of his days." My right hon. Friend clearly envisages that, in a case of a serious murder, such as that which occurred in 1965, the individual concerned will remain in custody for the rest of his days.

Unfortunately that belief was undermined to some extent when, earlier this month, my right hon. Friend the Home Secretary advised the police that one of the men convicted of that terrible murder at Shepherd's Bush, John Edward Witney, was to be released on life licence five years before the end of the 30-year sentence recommended by the trial judge.

My right hon. Friend told the chairman of the Police Federation that that decision was taken after consultation with the Lord Chief Justice and that it reflected the view that Witney's case could be distinguished from that of his two co-defendants since he did not fire a weapon during the shooting. He also said that the Parole Board did not consider that Witney would present a risk and accordingly it recommended his release. I hope, as I am sure every hon. Member does, that my right hon. Friend is right.

What my right hon. Friend's decision has made crystal clear is, as he announced,

"Murderers of police officers should normally be expected to be detained for at least 20 years."

Mr. Robert Maclennan (Caithness and Sutherland) : What conclusions does the hon. Gentleman draw from this experience about the matter under debate? Does he believe that his clients, the Police Federation, would have greater confidence in the decision of a judge who initially recommended 30 years or in that of some unknown Home Secretary some years on?

Mr. Shersby : I am grateful for that intervention and if the hon. Gentleman will bear with me for a moment I shall give the House my answer.

When my right hon. Friend announced his decision to release Witney, he said that 20 years was consistent with the Government's declared policy of ensuring that the time served by prisoners convicted of the worst offences of violence fully meets public concern about violence. However, it does not fully meet the concerns of members of the Police Federation. They expect the sentence imposed by the court to be completed, and that in the case of police murders the offender should lose his or her liberty to the state for the rest of his or her days.

As a result of the release of Witney this month, the federation is now calling on the House to sustain the Lords amendment, and to rely on the courts to ensure that the offender will not be released before a fixed period determined by the court.

Mr. Ivan Lawrence (Burton) : Is that not the exact opposite of the view expressed strongly to us by the Police Federation six months ago?

Mr. Shersby : I shall return to that point in a few moments, but it is true that there has been some change from the views formerly held by members of the Police Federation. That change has undoubtedly been influenced by the Witney case.

I share the federation's concern, but I understand that, in advancing the case for overturning the Lords amendment, my right hon. Friend the Home Secretary

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must have very much in mind that in the end it is the Home Secretary and the Government of the day who have to take responsibility for the protection of the public. That is one of the most essential considerations affecting our approach to this difficult matter. I hope, therefore, that when my right hon. Friend the Minister of State replies to the debate she will tell us how she reconciles the release of Witney with the policy so clearly expressed by the Home Secretary :

"the best and fairest system is the one we have now, where the life sentence is fixed by law, and the responsibility then passes to the Home Secretary of the day to decide how the sentence should be spent".

I hope that, if my right hon. Friend the Home Secretary wishes--as I know that he does--to retain the full support of the police for his policy, he will give an assurance that there will be no more releases before the sentence fixed by the trial judge has been completed, especially in cases such as that which I have described, in which the recommendation was specific.

I realise how difficult a decision my right hon. Friend has had to face today in deciding how to deal with the amendment. I believe that he has done as he has because he recognises that it is his responsibility as Home Secretary--as it will be the responsibility of his successors in due course --to protect the public and to be able to reassure them that no one who commits such murders will receive any sentence other than one that will deter and will protect the public from ruthless and vicious killers.

Mr. Maclennan : The hon. Member for Uxbridge (Mr. Shersby) has holed the Home Secretary's argument below the water line. He has made it plain that the Police Federation, which is more continuously concerned than any other section of the community about the threat posed by murder to the public--and indeed, to the federation's own members--does not agree with the view that the Home Secretary sought to persuade the House was the general view of the public. It does not agree that a deterrent sentence, a mandatory life sentence, is the most effective response to the crime of murder.

Nothing in the Home Secretary's speech adduced any evidence that the public's view of the mandatory life sentence was as he suggested. That idea is remote from what I understand to be public opinion on the subject. I believe that the public recognise that mandatory life sentences are not life sentences. Many members of the public are sceptical about such sentences because they vary so much. They vary not according to the courts' perception of the seriousness of the crime, but according to the view of the Home Secretary of the day some years later.

I understand that the Minister of State is to reply to the debate, and I noticed that the Home Secretary, in an aside to her, spoke of his obligation to protect the public when he takes decisions on release. There is no doubt that that must be the predominant consideration in the minds of Home Secretaries when exercising their discretion, but it is not the predominant consideration that leads the public to criticise the mandatory life sentence. The public criticism is that too often a life sentence is too short. That is a more realistic appraisal of the public view of life sentences. The argument is not new for those who have already spoken in such debates, but I have not had the opportunity to speak on the subject earlier in the Bill's progress, so I intend to put on record a few of the considerations that have led me to believe that the time has come for a change in the law.

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When capital punishment was originally abolished I was satisfied that the mandatory life sentence was a sensible alternative, but as we have seen the law evolve and cases being decided it has become increasingly clear that the penalty does not in any sense match the crime. Although the court is undoubtedly best placed to assess the heinousness of the offence--the court is possessed of the evidence and has the opportunity to see the witnesses--it is not the court that determines how long the convicted murderer will remain in prison. The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) described graphically what have been described in another place as the "secret communications" between the sentencing judge and the Home Office. It is not appropriate, and the public does not regard it as appropriate, that sentencing should be conducted in that manner--by secret negotiations with the Executive. Most members of the public regard judges as the appropriate people to make decisions about the seriousness of a crime and the length of prison sentence to be suffered by the convicted person.

The law as it stands invests in the executive arm of Government the effective power of sentencing for murder--a power exercised in secrecy, so that it does not allow of an appeal in the normal sense of the word, a fact which has brought us before the European Court of Human Rights. Our procedures have been seriously criticised in that court, and we have been found to be in violation of article 5(4) of the convention. I look forward to hearing the Home Secretary's argument on how he intends to deal with the Thynne case.

Moreover, the law as it stands does not distinguish properly between different degrees of murder. Clearly it is unsatisfactory that mandatory life sentences are automatically imposed in cases where patently less moral turpitude has been involved than in some of the more appalling cases that have come before the courts. It dilutes the sentence of life imprisonment, and the public perception that it may average nine years is perpetuated, when the truth is that a serious case of premeditated murder, of the kind that we all recognise, should mean true life imprisonment--that is, imprisonment for life. I believe that in such cases it should mean imprisonment for life, but that the law needs to be amended to enhance the deterrent effect of such true life sentences.

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Lord Nathan, who chaired the Select Committee in the other place, asked whether the existing law acted as a suitable or adequate deterrent and concluded that it did not because of the uncertainty, in practice, of the duration of the penalty.

The Lord Chief Justice, whose views were alluded to at no point in the Home Secretary's speech, was extremely critical of the law as it stood and, in particular, of the very argument that seems to underlie the approach adopted by the Home Secretary. I agree with the right hon. Member for Sparkbrook that the Home Secretary appears to be posturing in front of an audience which he considers--wrongly, in my view--is attracted to executive penalty and executive release. Lord Lane said :

"It is no sign of weakness to replace what I suggest is a flawed system with one which at the very least offers an opportunity to achieve greater fairness and so greater justice."

I think that Lord Lane was right, and the fact that the exercise of executive discretion is very much a matter of

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whim has been illustrated by the practice adopted by successive Home Secretaries in the present Conservative Administration. The right hon. and learned Member for Warley, West (Mr. Archer) referred to one of the Select Committee's findings. In 1988, a higher tariff was decided by Ministers in 63 out of 106 mandatory life sentences which had been reviewed. In a six-month period in 1984, however, after Mr. Leon Brittan, as he then was, had altered the rules for review, Ministers increased the penalties recommended by trial judges in 80 cases out of 195. I do not know whether any of those alterations were made with a view to changing public perception of the effectiveness of the deterrent or what the reasons for those changes were, but they were certainly changes and they did not reflect a consistent approach by Home Secretaries to the protection of the public.

These are difficult matters for Home Secretaries to decide. I have no doubt that there must be a procedure involving the Home Secretary in the case of those whose release would constitute a danger to the public. It is beyond question that that is not something that trial judges can take into consideration. It is also clear, however, that the Home Secretary is not so well placed as the trial judge to decide the penalty appropriate for the crime.

I fear that we shall not conclude our discussions of this subject today. Judging by the tone and shortness of the Home Secretary's speech, and given that he did not address any of the substantial arguments deployed by the many Committees that have considered the matter or the arguments made in the other place, we shall clearly be returning to this debate in future. I hope, however, that we shall see a movement in the consensus within the Conservative party which reflects the very general concerns expressed by those who have to administer the law at the highest levels about the injustices of the present system.

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