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Lord Hope of Craighead: Before the noble and learned Lord sits down, perhaps he will help me on a
point touched upon by the noble and learned Lord, Lord McCluskey, relating to the explanation for the decision to introduce this whole range of mandatory life sentences. As I understood the explanation given, it was that the decision was a reaction to a tragic case involving the crime of rape. I could understand the decision if it had concentrated on the problem raised by that particular case. Indeed, I think I could understand it if the list had been kept comparatively short and dealt with other cases that have caused concern in the past, cases where culpable homicide has been committed on two separate occasions by the same offender. The point I have always found very difficult to understand is why it was decided to expand the list to such an extraordinary extent.I use the word "extraordinary" because two features come to mind. The first is that it looks very like an attempt to copy, word for word, the list that is given in the English Bill, the Crime (Sentences) Bill, although the wording has had to be changed to accommodate the differences between crimes north and south of the Border. That is the first characteristic which I find not particularly attractive, given that it is the only reason advanced so far for the decision to place this measure before the Committee. Secondly, our list of offences has expanded as time has gone on in a way that has not been reproduced in the English legislation.
The feature that causes me some concern and to which I shall return later is the need to expand the list to create a sensible structure upon which the whole sentencing practice of the court can proceed. It strikes me as a matter that merited more careful thought--which so far as I am aware the whole subject did not receive--before the announcement was made that this was a policy that the Government proposed to follow. Can the noble and learned Lord the Lord Advocate help me by explaining whether there was any cause other than that one case, which we all accept was so tragic, which led to the decision to take the matter to the extent now before us in the Bill?
Lord Mackay of Drumadoon: I assure the Committee that the issue was given full consideration within government. I am sure that the noble and learned Lord would not expect me to divulge the full extent of the detail of discussion that took place. However, I assure him that the decision was not, as the noble and learned Lord, Lord McCluskey, took it to be, the decision of one man, namely the Secretary of State, on the basis of one case, which admittedly was a very serious one and which, as Members of the Committee will accept, falls fairly and squarely within the problem that one seeks to address. It was a decision of government, taking the advice of all those who contribute to the decisions of government. It came along after the Maguire case became public. I wish to dispel any suggestion that it was just the result of a rush of blood to the head of the Secretary of State in the light of matters of which he became aware when the case became public and of media attention to that individual case.
The English proposals had been around for some time and had been considered by government. People were addressing their minds to this issue. Noble Lords may not accept that, but it cannot be disputed that the issue of the automatic life sentence had been considered by government for many months before the Maguire case. The Government took the view that this policy should be encapsulated in Clause 1.
Earlier, I was quite frank in saying that there was not the detailed consultation that many noble Lords and noble and learned Lords would have liked. But there it is. The view is that when we are dealing with repeat offenders who commit serious sexual and violent offences, this is the route that should be followed and it should not be limited to those who commit rape but should cover the broader range of offences set out as qualifying offences--and as "relevant" offences in an amendment that we shall debate in due course.
Having listened to numerous urgent debates on the English Bill and not a few hours on this Bill, I know that no matter how long I talk I shall not convince every Member of the Committee to share the Government's views. However, they were set out in the legislation and were put through another place, where they attracted--I am sorry for reminding noble Lords opposite--a measure of support. That is the basis on which they are brought before this place.
Regarding the matter of the list being longer or, in the words used by the noble and learned Lord, extraordinarily wide, I think he will be the first to admit that to some extent he has contributed to the process, and I fully appreciate why he did so. Obviously, having established the policy that convictions for serious violent and sexual offences in England should have an effect on subsequent convictions in Scotland and the other way round, one looks for as much similarity as one can achieve. It is not possible to construct lists which are a precise mirror image of each other. I hope that, when we come to discuss the detailed amendments setting out the provisions covering qualifying offences and relevant offences, Members of the Committee will be satisfied that the Government's proposals, both in the Bill as currently drafted and in the amendments which I shall move later, achieve as high a degree of mirror image--if that is a correct analogy--as possible. If not, no doubt we can look at that when we come to the amendments. I hope that that answers the point raised by the noble Lord as to why the list is not restricted to rape and culpable homicide.
6 p.m.
Lord Hughes: I am interested in Amendment No. 8. Over many years in this House I cannot remember ever seeing an amendment to replace the word "shall" by the word "may"; but there have been innumerable occasions when it has been moved that the word "may" should be replaced by the word "shall". The Government have always argued that from a legislative point of view the word "may" can include the word "shall". Are we to have a new definition to the effect that the word "shall" cannot include the word "may" but the word "may" can
include the word "shall"? Is the meaning of the words "may" and "shall" now to be definitely decided in the way that ordinary people would regard it and not from the point of view of a legislative quirk?
Lord Mackay of Drumadoon: What is being decided, as I am sure the noble Lord knows well, is how these words would fall to be construed in the Bill. There can be little doubt that the noble and learned Lord, Lord McCluskey, would not move this amendment unless he, as a senator of the College of Justice, anticipates the possibility--to put it no higher--that he and his colleagues would construe the word "shall" in a different way to that in which they would construe the word "may" in the Bill were it become law. What he might do in other legislation is no doubt something that he and I could discuss on different sides of the Bar on another occasion.
Lord Macaulay of Bragar: Perhaps I may take up two points arising out of these amendments. To take up the point made by the noble Lord, Lord Hughes, in Clause 1(3) the word "may" appears twice, which appears to give discretion. As I understand it, the noble and learned Lord, Lord McCluskey, wants to replace the word "shall" in subsection (2) with the word "may". It would appear that, for the sake of consistency at least, the word "may" should be the common thread throughout subsections (2) and (3). I do not know whether that appeals to the noble and learned Lord the Lord Advocate or not. Why should the word "may" appear in Clause 1(3) and the word "shall" appear in Clause 1(2)? Perhaps he will consider the point and we can deal with it at another stage.
Amendment No. 38 has been grouped with the present group of amendments. For the avoidance of doubt, will the noble and learned Lord, the Lord Advocate make it clear that we shall have a discussion on Amendment No. 38 in due course? We have been rather floating about between amendments in the discussion. Maybe I have it wrong, but can we have a guarantee that in due course we shall discuss Amendment No. 38?
Lord Mackay of Drumadoon: Yes. The noble Lord raises an understandable concern that we have not discussed Amendment No. 38. The original proposal was that we would discuss it in the group beginning with Amendment No. 4; we did not do so. We shall return to it later, as I understand it. We are currently discussing a group which begins with Amendment No. 8 but, for reasons we have discussed, it has been limited in scope. However, it has never included Amendment No. 38, so now is not the time to discuss that amendment.
Lord McCluskey: If I may, I shall explain to the noble Lord, Lord Hughes, that in this instance the substitution of the word "may" for the word "shall" is crucial. The word "shall" means that judges are required to impose the sentence specified in the clause. If one replaces the word "shall" with the word "may" it means that they may impose a life sentence but they do not have to do so. The substitution is crucial in this case.
So far as concerns the Parole Board, the Lord Advocate correctly referred the Committee to Section 2(5)(b) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, but I am afraid that for a proper understanding one needs to look at the preceding section. Section 2(5)(b) says that the Parole Board shall not give a direction to the Secretary of State to release a discretionary life prisoner unless:
- "the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined".
The Parole Board has a duty under the 1993 Act to consider the question as to the necessity for the protection of the public if the prisoner is confined or released. But subsection (4) provides that:
- "Where this subsection applies, the Secretary of State shall, if directed by the Parole Board, release a discretionary life prisoner on licence".
- "The Parole Board shall not give a direction under subsection (4) above unless--
- (a) the Secretary of State has referred the prisoner's case to the Board".
The man who starts the process is the Secretary of State. He requires the Parole Board to consider the matter and, if it makes a judgment about safety favourable to the prisoner, it tells the Secretary of State that he has to release him.
Under this Bill the Secretary of State neatly disappears from the scene and the entire responsibility is landed on the Parole Board. When the period of time prescribed by the judge under the Act has passed, the Parole Board is required to decide whether the person can be released and, if something goes wrong, the Secretary of State can always say, "It wasn't me".
In relation to the consultations that take place within the Government, not only do I not wish to know about them but I shudder to think what effect they would have upon my delicate constitution. I have been a close student of the Secretary of State's pronouncements on the matter and I quote from his speech on the 24th April 1996 to the Scottish Police Federation conference in Peebles:
- "Parliament decrees, by statute, the norms of sentencing for crimes. Even in those instances where sheriffs and judges pass sentences whose leniency provokes public outrage, it is Parliament which awarded them the discretion. It is Parliament's right--and duty--to qualify or remove that discretion when public opinion has been persistently scandalised".
That means that by the 24th April the Secretary of State had formed the view that judges in Scotland were exercising such leniency that they were provoking public outrage and persistently scandalising the public. It was in that state of mind that he reacted to the Mhairi Julyan case in June by announcing the present proposals.
The important thing about the reform of criminal justice is that hitherto Parliament largely stayed out of the reform of criminal justice in Scotland until 1980. There were hardly any Acts of Parliament on the subject--very few to do with procedure and some, but not many, to do with imprisonment and sentencing policy. Parliament has now stepped into this matter on a very considerable scale. Since Parliament stepped in,
it has been the invariable practice to consult extremely widely, preferably through the mechanism of a committee like the Kincraig committee. That committee sat for a very long time. Like the noble Lord, Lord Carlisle of Bucklow's committee, it took a lot of evidence and then made recommendations which the Government in part accepted and in part modified. It is that process which has been departed from, which has given rise to such disquiet about the Bill.
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