---

Column 1357

The public, therefore, do not know what life means in the view of the trial judge when he makes his recommendation, unless he makes it in open court.

The Secretary of State sought to recognise some of the strength in the Lord Chief Justice's point when he said that the recommendation was disclosed to the prisoner, and that the prisoner can see everything. Since Doody, that has been true, although it was not true before. It would be interesting to know what view his Department took before that. I assume that it accepted the view that there should be no disclosure.

The Secretary of State also said that, once he as Home Secretary had made a recommendation, he would be prepared to disclose that recommendation and what had preceded it to anyone who asked. That is okay as far as it goes, but it represents not an administration of justice in public, but a willingness to disclose retrospectively the trial judge's recommendation if he does not make it in open court, the Lord Chief Justice's recommendation, and of course ultimately the Secretary of State's decision. On any analysis, however, that could not be regarded as an open administration of justice. A real distinction exists between the process as it operates at present, especially where no recommendation is made in public, and the process as the Lord Chief Justice has proposed it.

The Secretary of State suggested that, if there were a right of appeal against the trial judge's recommendation in open court, that would produce its own anomaly because, at present, the law does not require that recommendation and a recommendation could be made in open court at the discretion of the trial judge which was subject to appeal. Plainly, however, there could not be an appeal where no recommendation was made by the trial judge. In a sense, one then ends up with three different systems for settling life sentences--the discretionary, and then a split system of two rather than one mandatory system--rather than two.

Again, the Secretary of State sought to deal with that by picking up the point made by the Lord Chief Justice that that apparent consequential anomaly could be dealt with by a practice direction. As I understood him, the Secretary of State said that it was wrong for a practice direction essentially to make law.

We sought to deal with that issue head on in amendments that we tried to include in the Bill. We wanted to make it a requirement on the trial judge to make his recommendation in open court and for any practice directions to be subject to approval by the House. Should the Secretary of State have wished to achieve that position, he could have provided for amendments to be made in the other place so that, in all cases, recommendations were made in open court.

6.15 pm

On the merits of why recommendations should be made in open court, it is important that the offender has the right to challenge the judge's recommendation and to advance arguments against it in a judicial setting. I shall come on to the issue of whether that undermines in practice the Secretary of State's discretion. I do not accept that it does; neither did the Lord Chief Justice, who said that he as Lord Chief Justice was placed in a difficult position when it came to making recommendations about a convicted murderer. He said:

"I hesitate to say the number of occasions on which he"--

---

Column 1358

the Home Secretary--

"departs from the advice"--

of the Lord Chief Justice. He continued:

"it would be quite unnecessary for him to seek the views of the Lord Chief Justice"

in all cases. He goes on:

"And may I make it clear that when I give my views under the present convention I have very little information. I have not been at the trial. I do not have the benefit of hearing representations and I have only a brief report from the trial judge."--[ Official Report, House of Lords, 26 June 1995; Vol. 565, c. 538.]

I found most persuasive of all the Lord Chief Justice's recommendation to the other place that the system should be changed. Here was the Lord Chief Justice, in a sense at the centre of this process, saying that he did not think that the current arrangements were working well because he did not have the benefit of the representation that could be made in open court about the length of sentence.

The Attorney-General should also have the right to make representations against what the Secretary of State rightly describes as a too lenient sentence. The phrase that he used was that the Home Secretary would be deprived of the Lord Chief Justice's advice in cases where there was no appeal. He was especially concerned about cases where the trial judge had, in the view of the Lord Chief Justice, been unduly lenient. There is an argument about whether the Lord Chief Justice would not be able to make recommendations in such a case. I cannot understand that argument. If there has been no appeal, but the Home Secretary still has, as he will have, a legitimate interest in making his own judgment on the merits of the case and in the public interest, about the appropriate sentence, the Lord Chief Justice's position, as someone who will give internal advice, could not be compromised by the possibility that he would sit on the appeal as, by definition, there is no appeal in that case. We are dealing with an issue not only of openness, but--here we are completely in agreement--of maintaining public confidence in the system by which prisoners are sentenced and serve sentences for the most heinous of cases, for which there is rightly the greatest public revulsion. It would be appropriate therefore for the Attorney-General to have the right of appeal against the recommendation made by the trial judge. I know what the argument was in the other place against that, but I do not accept it.

The changes that the Lord Chief Justice has recommended would not only improve the administration of justice, which is often seen, wrongly, exclusively in terms of the offender and the prosecution; it would improve the administration of justice from the point of view of the victim's family, who are the victims as the victim has, by definition, died.

That point was made by the national chair of Victim Support, Sir Louis Blom -Cooper, in a letter which was sent to the Clerk of the Home Affairs Select Committee on 28 March 1995. He said that there had been much discussion when Victim Support gave oral evidence about who should set the tariff. He said:

"Victim Support and SAMM both agreed in favour of the judge determining and announcing the period to be spent in custody." As far as I can judge, the argument was not about discretionary sentences versus mandatory ones, but whether the recommendation should be made in open court. Whatever the argument, there is no doubt that Victim Support wants that recommendation to be made in

---

Column 1359

open court. I believe it is right, because there is every advantage in the system being as open as conceivably possible from the point of view of the victim's family.

Is it appropriate for there to be an appeal within the judicial system against what is just a recommendation to the Secretary of State, not a decision? The argument advanced by the Secretary of State today was that made by the Minister of State in another place on 8 June. She said:

"I cannot accept the argument that a right of appeal ought to exist against those . . . recommendations. Where there are avenues of appeal against sentence they are, almost without exception, in cases where the court has the final word on the subject: where the Executive has no power to substitute a different order."

That argument had been shot down in flames earlier by the Lord Chief Justice, Lord Taylor of Gosforth, who spoke in support of the proposed changes. He said that another of his noble Friends had suggested there was an important distinction between a judge who was making a decision and a judge who merely made a recommendation. He accepted that that was a distinction, but he went on to say: "but it does not go to the merit of this amendment because at present the recommendation for deportation which a judge makes is only a recommendation. It is not binding on the Home Secretary."--[ Official Report, House of Lords , 8 June 1995; Vol. 564, c.1479-82.] He went on to say, however, that within the statute there is a right of appeal in respect of a recommendation for deportation. How much more appropriate it would be if the long period of years that a defendant may have to serve in custody as a result of a recommendation about the length of the term he should serve was also subject to the right of appeal. Given that Lord Taylor spoke before Baroness Blatch, I am surprised that she did not pick up his argument and answer it.

It is usual for appeals to be made in court against decisions, not recommendations. The example offered by Lord Taylor reveals that there are cases, quite correctly in my view, when the Secretary of State exercises the judgment that Parliament has given him because wider considerations than simply narrow judicial matters exist. That is one of the arguments in favour of the mandatory system. Despite that, however, Parliament has also decided that that judgment is consistent with the Secretary of State having the benefit of advice, determined through a judicial process, of both the trial judge and a judge at the Court of Appeal.

I am the first to admit that this is not an easy matter. I acknowledge that the Secretary of State has thought long and hard about it, as I have--I hope that is apparent from what I have said. I am sorry that we are on different sides of the argument because it is important on such issues that we should, as far as possible, reach a consensus, particularly at a time when the argument between different sides of the House about capital punishment is largely over. I have studied the matter with great care and I believe that their Lordships were correct; I therefore urge the House to resist the motion moved by the Secretary of State.

Mr. A. J. Beith (Berwick-upon-Tweed): I apologise to the Home Secretary for missing his opening remarks. That

---

Column 1360

apology is made on behalf of British Rail, whose train, which customarily takes four hours to travel to London, took eight hours instead. I left the train while an argument ensued about which operating company was responsible for the track to which the train might be diverted. That argument seemed further to delay the train, so I fled the scene at Alexandra Palace and resorted to other means of transport.

I approach the matter from a different standpoint from that of the hon. Member for Blackburn (Mr. Straw). I disagree with him about the value of the mandatory life sentence. It is undesirable in principle for the Executive to impose sentences and visibly unsatisfactory in practice when it leads to problems as diverse as excessively lenient sentences and those arising from the Private Clegg case. This is not the occasion for that argument.

Suffice it to say, the hon. Member for Blackburn, arguing from the rather conservative standpoint of one who does not want to change the current position, nevertheless demonstrated that it is possible to support the Lords amendment whether one approves or disapproves of the mandatory life sentence. I approach the argument from a different standpoint. The particular value of the argument put by the hon. Member for Blackburn is that it underlines to Conservative Members that it is possible to support the Lords amendment while nevertheless wishing the mandatory life sentence to continue to be imposed. I do not want the mandatory life sentence to remain in operation and I find myself in agreement with the Law Lords who were leading figures in tabling the amendment. My reason for supporting the amendment is slightly different from that put by those Law Lords. If we are to have a system of Executive determination of sentence it should be an open one, so that we can know what is happening at each stage.

Lord Ackner argued strongly that the Government's primary reason for resisting their Lordships amendment was the inconvenience caused when it became clear in which cases the Home Secretary had overturned strong judicial opinion, whether in favour of a shorter sentence or a longer one.

It is desirable that the process should be an open one. The existence of a process of appeal is a natural part of such openness. That particular proposal commanded support from many in the other place as well as the overwhelming support of members and ex-members of the judiciary, for example, Lord Hailsham of St. Marylebone among others.

The arguments adduced against the change range from those that are merely arguments about Government convenience and the avoidance of embarrassment to those that construct a delicate constitutional distinctiveness for the process of Executive decision of sentences. It is argued that that mechanism is so unique that it is not appropriate to subject it to a process of appeal.

I do not accept either of those types of argument and I urge my hon. Friends to support the noble Lords in the sensible change that they have made to the Bill.

Mr. Howard: I can be brief as the hon. Member for Blackburn (Mr. Straw) was kind enough to say that I had anticipated most of the arguments that he intended to put. I believe that I did so, and therefore I do not propose to repeat them.

---

Column 1361

The issue of openness was dwelt upon by the hon. Gentleman and the right hon. Member for Berwick-upon-Tweed (Mr. Beith). I do not believe that the amendment has anything to do with that. I gave an account of our existing system. There are ways in which it could be made even more open. It is true, as the hon. Member for Blackburn said, that there could be a requirement on the trial judge to say in every case in open court what his recommendation would be. Quite how helpful that would be, bearing in mind that that recommendation is only the first part of a three-part process, I am far from clear. That is something that could be changed. Perhaps that proposal will be recommended in the report of the Select Committee on Home Affairs, to which the hon. Gentleman referred. I know not. We should have to look at such a proposal with great care in the context of that Select Committee report. But that is an entirely separate matter from the right of appeal against that recommendation which is what the amendments are essentially about. It is that right of appeal to which I object, for the reasons which I gave earlier, and in particular because I cannot see the sense or logic in having a right of appeal against a recommendation that is the first stage of a multi-stage process.

The decision made by the Secretary of State on these matters is not immune from the scrutiny of the courts. The right hon. Member for Berwick-upon- Tweed seemed to give the impression--no doubt inadvertently--that that was so. But it is not because the decision of the Secretary of State is subject to judicial review. That is an important safeguard and it is right that it should be there. It is not the case under the existing arrangements that the decision of the Secretary of State cannot be subjected to judicial scrutiny. It can be, and it is.

On the point made by the hon. Member for Blackburn about the precedent for an appeal against an advisory decision--the deportation order recommendation--with respect to the hon. Gentleman and the Lord Chief Justice, that is significantly different. The recommendation of deportation is part of the order of the court and unless such a recommendation is made, the Secretary of State cannot deport on the ground that the person concerned has been guilty of a criminal offence. There may be other grounds on which the Secretary of State can deport, but if the Secretary of State wished to deport solely because that criminal offence was committed, he could not do so unless there had been a recommendation to that effect by the judge. So although it is true that in one sense that recommendation is advisory, it plays a much more significant role in the

decision-making process in that context because it is a sine qua non of the Secretary of State's decision, than does the trial judge's recommendation of what the tariff should be, which is just the first stage in the multi- stage process which I have described.

6.30 pm

Mr. Straw: I am grateful to the right hon. and learned Gentleman for making that point. I accept that there is some distinction, but I do not think that in principle there is any serious distinction. In the other place, Baroness Blatch said words to the effect that there were no circumstances in which a recommendation from a trial judge was subject to a judicial process of appeal where the final decision was made by the Secretary of State. In deportation situations, it

---

Column 1362

is a recommendation--albeit the Secretary of State cannot act without it--it can be the subject of appeal and the Secretary of State has, as I understand it, complete discretion as to what to do about it.

Mr. Howard: He does not have complete discretion as to what to do about it because, as I said a moment ago, he cannot deport without that recommendation.

Mr. Straw: He can confirm or reject it.

Mr. Howard: He can confirm or reject it, but if there is no recommendation, he cannot deport. It is for that reason that the deportation recommendation is part of the order of the court and is very significantly different in effect from the kind of advisory recommendation which we are discussing.

For all those reasons, therefore, in addition to those which I gave earlier, I invite the House to reject the amendments. They would add a quite unnecessary stage to procedures that are on the whole working well. I do not believe that the case for them has been made out and I invite the House to disagree with the Lords in the amendments. Question put, That this House doth disagree with the Lords in the said amendment:--

The House divided: Ayes 254, Noes 225.

Division No. 205] [6.33 pm

AYES

---

Column 1362

Ainsworth, Peter (East Surrey)

Alexander, Richard

Alison, Rt Hon Michael (Selby)

Allason, Rupert (Torbay)

Arbuthnot, James

Arnold, Jacques (Gravesham)

Arnold, Sir Thomas (Hazel Grv)

Ashby, David

Atkins, Rt Hon Robert

Atkinson, David (Bour'mouth E)

Atkinson, Peter (Hexham)

Baker, Rt Hon Kenneth (Mole V)

Baker, Nicholas (North Dorset)

Banks, Matthew (Southport)

Banks, Robert (Harrogate)

Bates, Michael

Batiste, Spencer

Bellingham, Henry

Bendall, Vivian

Beresford, Sir Paul

Biffen, Rt Hon John

Bonsor, Sir Nicholas

Booth, Hartley

Boswell, Tim

Bottomley, Peter (Eltham)

Bottomley, Rt Hon Virginia

Bowden, Sir Andrew

Bowis, John

Boyson, Rt Hon Sir Rhodes

Brandreth, Gyles

Brazier, Julian

Bright, Sir Graham

Brooke, Rt Hon Peter

Browning, Mrs Angela

Bruce, Ian (Dorset)

Burns, Simon

Burt, Alistair

Butcher, John

Butler, Peter

Butterfill, John

Carlisle, John (Luton North)

Carlisle, Sir Kenneth (Lincoln)

---

Column 1362

Carrington, Matthew

Carttiss, Michael

Cash, William

Clappison, James

Clarke, Rt Hon Kenneth (Ru'clif)

Clifton-Brown, Geoffrey

Colvin, Michael

Congdon, David

Conway, Derek

Coombs, Anthony (Wyre For'st)

Coombs, Simon (Swindon)

Cope, Rt Hon Sir John

Cran, James

Curry, David (Skipton & Ripon)

Davies, Quentin (Stamford)

Day, Stephen

Deva, Nirj Joseph

Devlin, Tim

Dicks, Terry

Dorrell, Rt Hon Stephen

Douglas-Hamilton, Lord James

Dover, Den

Duncan, Alan

Duncan-Smith, Iain

Dunn, Bob

Durant, Sir Anthony

Elletson, Harold

Emery, Rt Hon Sir Peter

Evans, David (Welwyn Hatfield)

Evans, Jonathan (Brecon)

Evans, Roger (Monmouth)

Evennett, David

Faber, David

Fabricant, Michael

Fenner, Dame Peggy

Field, Barry (Isle of Wight)

Fishburn, Dudley

Forth, Eric

Fowler, Rt Hon Sir Norman

Fox, Dr Liam (Woodspring)

Fox, Sir Marcus (Shipley)

Freeman, Rt Hon Roger

---