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Lord Hailsham of Saint Marylebone: My Lords, before my noble friend speaks, I do not believe that we have voted on Amendment No. 1.

Noble Lords: We did.

Lord Hailsham of Saint Marylebone: My Lords, we voted on Amendment No. 2.

The Lord Chancellor: My Lords, I have called Amendment No. 5.

Baroness Blatch moved Amendment No. 5:

Page 11, line 35, leave out from ("verdict") to end of line 8 on page 12 and insert (", finding or sentence shall not be made under any of sections 10 to 13 unless—
(a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made,
(b) the Commission so consider—
(i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or
(ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised, and
(c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.

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(2) Nothing in subsection (1) (b) (i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.").

The noble Baroness said: My Lords, I understand my noble and learned friend's confusion, but Amendment No. 1 was voted on.

Turning to Amendment No. 5, Clause 14(1), as drafted, sets out the broad criteria for the referral of a conviction, verdict or finding by the commission to the courts. Essentially it requires that there must appear to be a real possibility that the conviction, verdict or finding will not be upheld on appeal following a reference and that there is some new element, whether argument or evidence, for the courts to consider before they should be asked to look at the case again.

These criteria are framed so as to enable the commission to refer possible convictions to the courts so as to discourage unmeritorious applications and references, while at the same time ensuring that cases which should be decided again by the courts are not prevented from going back there by what will be the only remaining avenue. We have always recognised that this is a delicate balance to strike; and so I listened very carefully to all that was said by your Lordships in Committee and last week during the Report stage of the Bill. As I acknowledged then, we saw the force of some of the concerns put forward by the noble Baroness, Lady Mallalieu, the noble Viscount, Lord Runciman, and others. Clearly in setting reasonable criteria for references we must ensure that references are not precluded in circumstances where injustice would result. Although, given their width, the circumstances in which a case which does not need the present criteria but will nevertheless merit referral will clearly be rare, we must ensure that such a referral is still possible.

I undertook at Report stage to bring forward the appropriate amendments today. My first amendment, Amendment No. 5, replaces subsections (1), (2) and (3) of Clause 14 with two new subsections. These enable the commission to refer a conviction, verdict or finding in the exceptional case where the existing criterion for there to be argument or evidence not already raised in any relevant proceedings is not met yet but there are nevertheless compelling reasons to justify its referral.

The second amendment is purely a drafting amendment. It effectively divides Clause 14, as amended, into two new clauses, thus making its terms clearer and easier to understand. I beg to move.

4.30 p.m.

Baroness Mallalieu: My Lords, I rise to support the amendment and in particular to thank the noble Baroness for having listened to concerns expressed in various parts of the House during the earlier stages of the Bill. I and others were concerned that the commission might find itself in a position where it considered that there was a possibility that a conviction was unsafe and was unlikely to be upheld if referred back to the court but felt unable to do so because the evidence or argument was not new and had been raised in some form, however rudimentary or unsatisfactory, at an earlier hearing.

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In her letter to my noble friend Lord McIntosh of Haringey, the noble Baroness, Lady Blatch, was good enough to explain the amendments that she now proposes and to amplify her understanding of the expression "exceptional circumstances" in Amendment No. 5. She stated:

    "These could include, for example, a case where the defence had failed to represent adequately the defence's case to the court at trial or on appeal, or where the court has developed the law by accepting an argument which it has previously rejected".

Those were the main worries which I and others expressed at earlier stages of the Bill. We are glad to see that this amendment makes it clear that the commission now has wide discretion to refer appropriate cases.

I accept the distinction that the noble Baroness draws between conviction cases and sentence cases and am grateful to her for bringing forward these amendments in this way.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 6:

Divide Clause 14 into two clauses, the first (Conditions for making of references) to consist of subsections (1) and (2) and the second (Further provisions about references) to consist of subsections (4) to (9).

On Question, amendment agreed to.

Clause 22 [Meaning of "public body" etc.]:

Baroness Blatch moved Amendments Nos. 7 to 9:

Page 17, line 26, leave out ("mean").
Page 17, line 28, after ("Reserve,") insert ("are to").
Page 17, line 30, after ("authority,") insert ("are to").

The noble Baroness said: My Lords, these are purely drafting amendments designed to improve the clarity of Clause 22(2) of the Bill, which defines "chief officer of police" for the purposes of Clauses 19 and 20. I beg to move.

On Question, amendments agreed to.

Clause 29 [Minor and consequential amendments and repeals]:

Baroness Blatch moved Amendment No. 10:

Page 22, line 26, leave out from ("amendments") to end of line 27 and insert ("shall have effect.
(2) The enactments specified in Schedule 3 (which include spent provisions) are repealed to the extent specified in the third column of that Schedule.").

The noble Baroness said: My Lords, this is a minor technical amendment. It is necessary if the Bill is to comply with the rule that we point up the presence in a repeal schedule of spent provisions. It has no other effect. I beg to move.

On Question, amendment agreed to.

Schedule 1 [The Commission: further provisions]:

Baroness Blatch moved Amendment No. 11:

Page 26, line 22, at end insert:
("( ) Such a report may include an account of the working of the provisions of sections 10 to 25 and recommendations relating to any of those provisions.").

The noble Baroness said: My Lords, we have previously discussed whether the Bill should specify what the commission may include in its annual reports

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to the Secretary of State on the discharge of its functions. I said at Report stage, in response to an amendment moved by the noble Lord, Lord Harris of Greenwich, that I saw some merit in making it clear on the face of the statute that the commission could comment in its annual reports, if it chooses, on the sufficiency of its own powers and procedures and that I intended to bring forward an amendment to this effect. This amendment is the result. As your Lordships see, it empowers the commission to include in its annual reports to the Secretary of State any comments it wishes to make on any matters which have caused it concern, or whatever, in relation to the working of its functions and powers as set out in Clauses 10 to 25 of the Bill; and of course it may also make any recommendations relating to any of those provisions. I think that that meets the concerns expressed by noble Lords opposite. I beg to move.

Lord Harris of Greenwich: My Lords, I welcome the amendment. There was a debate on this matter at Committee stage and further discussion at Report stage. Subsequently, there was an exchange of correspondence between the noble Baroness and myself. The amendment meets our anxieties. I am most grateful to the noble Baroness.

On Question, amendment agreed to.

Schedule 2 [Minor and consequential amendments]:

Baroness Blatch moved Amendment No. 12:

Page 27, line 26, at end insert:
("( ) In section 18 (initiating procedure), in subsection (2), at the end insert "or, in the case of a recommendation, from the date of the declaration of the recommendation".
( ) In section 22 (right of appellant to be present), in subsection (3), after "on a person" insert ", or declare a period which they recommend as the minimum period which should elapse before the Secretary of State orders a person's release on licence,".").

The noble Baroness said: My Lords, this amendment was spoken to with Amendments Nos. 1 to 4. I beg to move.

On Question, amendment agreed to.

[Amendment No. 13 not moved.]

4.38 p.m.

Baroness Blatch: My Lords, I beg to move that the Bill do now pass.

I said at Second Reading that this Bill is a measure of great importance for it is concerned with both the pursuit of justice and with public confidence: confidence that justice is done and is seen to be done. That this is true has been amply demonstrated by our debates both today and at earlier stages in our discussions. Perhaps I may say that I was greatly heartened by the warm welcome which the Bill received in your Lordships' House and by the constructive approach which has characterised our discussions.

There have, I think, been three main areas on which our debates have concentrated: the criteria for referral, the commission's investigative powers and, lastly, openness and disclosure, and in particular the degree to which the commission will be able to disclose information to applicants.

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The Bill places broad conditions on the power of the commission to refer convictions, verdicts, findings and sentences to the courts. Their purpose is to guide both the commission and those wishing to make representations as to the sort of circumstances in which it will be appropriate for the courts to hear a further appeal as a last resort. But the criteria must not exclude any case in which an injustice would result if it could not be referred. Following the very helpful earlier debates on this issue in your Lordships' House we have again looked at this. As a result we have extended the existing criteria in the Bill so that the commission may in exceptional circumstances refer a conviction, verdict or a finding to the courts even where the very broad criteria in Clause 14(1) (b) (i) are not met. I am grateful to your Lordships for your contributions to this debate at each stage.

A number of your Lordships have rightly stressed the importance of putting in place procedures for investigating cases which are both effective and independent. To that end, the powers in the Bill for the commission to engage the assistance of police forces and other public bodies and the commission's ability to employ professional experts of all kinds are of the utmost importance. Here again your Lordships have been instrumental in strengthening the commission's powers. The commission will have various means of investigating at its disposal, and the police will play a vital part in helping it. The extent to which the commission's own staff or those it may contract from outside will take part in investigations has been the subject of much scrutiny and much helpful discussion. The noble Lord, Lord McIntosh, and I have had a helpful further discussion since Report stage, and I am happy to confirm the position.

So far as the power to investigate is concerned, Clauses 19 and 20 enable the commission to co-opt police officers or, if appropriate, members of other public bodies. They do not require the commission to do so. The commission will be resourced and equipped on the basis that it will make full use of its Clause 19 powers to request police assistance. But its resources will certainly allow it, if necessary, in an exceptional case to do itself or to commission others to do work that would otherwise normally be done by police officers. The commission will in any case do, or commission others to do, a good deal of investigating of a kind that is not specifically police-type work.

Our debates focused very properly, too, on the accountability of the commission, which is a necessary counterpart to its independence. The Bill contains provisions that will require the commission to submit to my right honourable friend the Home Secretary an annual report on its work, together with appropriate accounts. Both will be laid by him before Parliament. The Bill also now makes it clear that its reports may include any matters which the commission may wish to bring to the attention of the Home Secretary with regard to the sufficiency of Clauses 10 to 25 once in force.

But parliamentary scrutiny is just one aspect of the openness of the commission's work for which the Bill provides. The Bill requires a statement of the commission's reasons for referring a case to be sent to

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the court where a case is so referred and requires that statement to be copied to all the likely parties to the resulting appeal. The Bill also requires that a fully reasoned explanation of any decision not to refer to be given by the commission to the applicant. We have further provided that the commission may disclose such information as may be appropriate in the individual circumstances of the case. Thus the commission will have full power to discharge its obligations of disclosure in the interests of fairness to the applicant within the framework determined by the courts.

One issue not directly related to the main focus of the Bill has, of course, exercised this House; namely, the creation of a right of appeal against a minimum recommendation made by the trial judge under the terms of the Murder (Abolition of Death Penalty) Act 1965. I would simply remind the House, as I made clear earlier, that the amendments tabled by the Government on this matter are without prejudice to the view that the other place might take. I think that we shall rue the day if we believe in this House that we can take a view that the other place should never be critical or take a contrary view simply because of the size of the majority in this place. When a matter is considered in another place, it is considered by another place entirely on its merits, and Members are entirely free of the elected Chamber and wholly accountable to members of the public outside Parliament to take a view independently of the size of the majority in this House.

The Government are fully committed to putting in place the best—the most effective—criminal justice system that it is possible to provide. With this Bill, we have taken another major step towards achieving that aim.

In conclusion, I thank all noble Lords on the Front Benches opposite who have been so constructive and helpful during the course of this debate. I also thank my eminent adversary, the noble and learned Lord, Lord Ackner, towards whom I promise I bear absolutely no malice. I have been daunted by the sheer weight of argument and legal support that have streamed in here after four o'clock on each of the afternoons that we have met. I hope again that we have been sufficiently constructive to open up a very healthy debate in this House.

That leaves me only to thank my noble friend Lady Trumpington, who gave me enormous support on these Benches, as did my noble friends behind me. The Bill has clearly benefited from the attention that your Lordships gave to it and important improvements have resulted. The public will have reason to be grateful for the contributions made in our debates, just as I am grateful for the spirit in which they were all put forward.

Moved, That the Bill do now pass.—(Baroness Blatch.)

4.45 p.m.

Lord Houghton of Sowerby: My Lords, the final stages of this Bill have been for us something of an intellectual ordeal—and possibly, if I may say so with great respect, for the noble Baroness herself. You have to be a High Court judge to understand all the intricacies of the debate through which we just went. However, this

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Bill in its original form received the full approval of this House. I re-read the debate at Second Reading and saw how unanimous was approval for the Bill in that form. It was only when the noble and learned Lord, Lord Ackner, introduced on Report his amendment regarding life sentence recommendations that we got into controversial deep water.

I hope that the Government will not send the Bill back to this House with the new clause in it. The noble Baroness reserved the Government's position on the principle of the matter, as I understood her remarks at the beginning. However, I hope, now that this House has accepted the technical dressing up of the amendment, that it will present no technical difficulties; and I hope that it will present no difficulties on grounds of policy. After all these years of controversy about the penalties imposed on those who are found guilty of murder, this House is entitled to take any opportunity of looking at experience and of trying to bring to bear a degree of humanity, if no more, upon a very difficult subject.

I do not believe that all murderers are bad people. I believe that good people sometimes suffer from the passions and feelings of human beings which from time immemorial have occasionally governed human conduct. If we look at history in all its forms, we see the emotional reactions of the deeply embedded psyche of the living creature to a situation that dominates all attempts at reason or logical decision. One must sometimes deeply sympathise with those who get into this dreadful situation.

We can at least, however, deal with some of the consequences of the actions taken in the past by Parliament in relation to this matter. Parliament said that capital punishment should end; and it has said more than once since then that capital punishment will not be reintroduced. I am sad to hear that one of the contestants for the leadership of the Conservative Party has taken on board, in his policy manifesto, support for the return of capital punishment. I regard that as a disqualification right away. It just shows that his political thinking is no better than that which existed 50 years ago.

When we decide that we shall no longer kill those who are convicted of murder, we have to consider what are the consequences of the alternative that we adopt. Without repeating the remarks I made last week, I feel that the amendment to the Bill in its present form meets the desire for a little more humanity and a little more certainty about the sentence of life imprisonment. Life imprisonment is a sham. We all know that. Only in very extreme circumstances does anyone serve a sentence literally for life.

Therefore, we must consider what we are doing to people. They are men and women. We have decreed that they shall be treated as human beings. We must do our best to give them the opportunity to earn some respite from the horrors of prison and re-enter their previous free life. Humanity must be uppermost in all matters relating to crime, which is one of those big subjects about which it would be unfair to release on the House a lot of philosophical considerations.

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Let me finish my pleading that the Bill as it stands now should be accepted by the Government. It should not be sent back. Despite the little difficulties over Amendments Nos. 1 and 2 we can feel that we have achieved something worthwhile in the Bill as a whole. We need have no reservations whatever about the wisdom of having put some hope in the minds of those who are sentenced to life imprisonment so that at any rate there exists a target to which they may work and, if they or those advising them feel that the sentence is excessive, there is the right to have it reviewed. That, uttered at the beginning, is the right of the prisoner. Therefore, in all the circumstances, I support the Bill.

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