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Lord Campbell of Alloway: My Lords, following my noble friend Lord Renton's intervention, I ask, with respect, whether the Minister could take on board his last question. Furthermore, in relation to Amendment No. 14, the Minister used the phrase, "preservation of operational integrity". Throwing the phrase back, there is no article of the convention, which I have here in my hand--I have been looking through it for about the 50th time--which states that preservation of operational integrity as such, and no more, if it could be justified, would be contrary to the convention.

The vast majority of signatory states to the convention possessed armed forces at the time when it was signed. It was implicit that they should be entitled to maintain discipline in their armed forces and to

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protect operational integrity. I wonder whether, when the Minister considers the matter with her advisers--I am not pressing her at all for a response today--she could consider looking through the convention. As far as I am concerned, it is common ground between the Minister and myself that Article 15 does not apply in this case. Where is the clear breach of which article of the convention that would arise from preservation of operational integrity?

Lord Mackay of Drumadoon: My Lords, before the Minister sits down, will she indicate whether she is prepared to undertake to look at the issue that I raised about the field general courts-martial? In reply to the debate on the amendment tabled by my noble friend, she said that one could not have one procedure working in one set of circumstances and another procedure in another set of circumstances. With respect, that seems to be what Section 103A provides. If the Minister is right about that, it raises sharply the issue of whether those provisions comply with the convention rights under the Human Rights Act.

I appreciate that the material is complicated and difficult and I do not expect an answer this afternoon, but I hope that the matter will be looked at because it seems to me that the thrust of the Minister's argument in reply to the principle argued by my noble friend is contradicted by existing legislation that she is not seeking to change in the present Bill.

Baroness Symons of Vernham Dean: My Lords, I undertake to look at that matter as the noble and learned Lord has kindly asked me to. This is extremely complex legislation. We are dealing not only with the usual array of magnificent support from the Civil Service and from civil service lawyers, but also of course from the military.

I shall attempt to return to the point raised by the noble Lord, Lord Renton, who reminded us that we signed the convention--I believe it was in 1951--and that we have managed to live with it perfectly reasonably without feeling the necessity to legislate in such a way. The amendments are now necessary because of the 1998 legislation, of which your Lordships are well aware, which brought the convention into our domestic courts.

I shall try to expand my explanation to the noble Lord. A failure to make such changes would render the system for service discipline subject to challenge in our domestic courts. The risk of frequent and successful challenges to the system would create an untenable position. That risk would seriously undermine service discipline and would seriously undermine the authority of the commanding officer. Commanding officers would be subject to constant appeals, not only to a military court but also to domestic courts or on judicial review. For that reason, as I indicated in my answer to a point raised earlier by a noble Lord, the chiefs of the armed services are extremely anxious to see this legislation enacted as quickly as possible.

I must confess that I used the terminology "operational integrity" not from the beautifully prepared briefs given to me by the department but as a

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way of trying to emphasise to your Lordships that the Armed Forces themselves are of course absolutely committed to operational effectiveness. That is what I meant by that phraseology; I was not trying to introduce an entirely new concept. It was only my own way of expressing--rather inelegantly--the issue about which we are all concerned; that is, the way in which we can ensure that individual service men and women are guaranteed their rights under the convention while at the same time ensuring operational effectiveness. That has been the concern of the Ministry of Defence and, indeed, the concern of our colleagues in the Armed Forces, as I am sure all noble Lords would expect it to be.

Lord Burnham: My Lords, I do not wish to be accused, as my noble friend Lord Moynihan was in the past, of misquoting the Minister, but she said that officers and men at all levels would do their very best to make the Bill and other legislation relating to discipline work. Of course they do; they are highly disciplined and they will do everything they can to make it work. That does not necessarily mean that they have to like it.

I should like first to speak to my Amendment No. 2, which is an amendment of principle. Article 15 of the European Convention is quite specific about the terms and I accept that, although I must admit that it is a pity that His late Majesty's Government did not implement a degree of derogation as the French did in 1951. But there it is; and we have it. This is a matter of principle. My noble friend Lord Attlee talked about things "going horribly wrong". I use a slightly different phraseology: I shall talk about getting into a very mucky conflict. That being the case, there needs to be some form of derogation in the Bill in principle for matters which come under the terms of Article 15 of the European Convention on Human Rights. I am by no means sold on my wording, but, in withdrawing the amendment, I hope that the noble Baroness will consider all that has been said and will conclude that there is possibly a case for introducing something along those lines at the next stage of the Bill. However, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Burlison: My Lords, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

ECHR Judgment: Thompson and Venables

Lord Burlison: My Lords, before we move to the Statement on the judgment of the European Court of Human Rights in the case of Thompson and Venables, I should like to take the opportunity to remind the House that the Companion indicates that the discussion on a Statement should be confined to brief

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comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords.

1 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, with the leave of the House, I should like to repeat a Statement which has been made in another place by my right honourable friend the Home Secretary. The Statement is as follows:

    "Madam Speaker, this morning the European Court of Human Rights announced its judgment in the case brought against the UK Government by Robert Thompson and Jon Venables. A copy of the judgment has been placed in the Library. These two youths were responsible for the appalling murder of James Bulger in Liverpool in February 1993. The whole House and the country has the deepest sympathy for James's parents. As Lord Reed, one of the court judges, said,

    'The grief of James Bulgers' parents, who took part in the proceedings before the Court, is inexpressible. The fact that [those responsible] ... were themselves only ten years old at the time of the murder makes it particularly disturbing'.

    "The authority of the European Court of Human Rights derives from our membership of the Council of Europe. The Council of Europe was established after the war on the initiative of the allies, especially the United Kingdom. It now has 41 nations in membership. The Council of Europe predates the European Union, and is wholly separate from it.

    "The European Convention on Human Rights is a convention of the Council of Europe, and the Court of Human Rights is one of its principal institutions. It was British jurists who played a leading role in drafting the convention. The United Kingdom was the first nation to ratify it in 1951. Successive United Kingdom governments ever since have consistently abided by the decisions of the Court, introducing amending legislation where necessary.

    "In the case which Robert Thompson and Jon Venables brought before the Strasbourg Court, the two youths essentially argued that facing trial in a Crown Court and having their tariff set by the Home Secretary were inappropriate given their ages. They claimed that these arrangements breached Articles 3, 5, 6 and 14 relating to powers of detention and the right to a fair trial. They were 11 at the time of conviction and are now 17.

    "The House will understand that I have had only a short time to read the judgment, but the key findings are as follows. There were no violations of the European Convention on Human Rights in respect of Article 3--the right not to be subjected to inhuman and degrading treatment or punishment--in respect of both trial and sentence. In particular, the Court held as lawful the age of 10 as the age of criminal responsibility in England and Wales. They were also of the view that the particular features of the trial process did not cause to a significant degree

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    suffering going beyond that which would inevitably have been engendered by any attempt by the authorities to deal with the applicants.

    "With regard to Article 5(1)--the right to liberty--the Court held that the sentence of detention at Her Majesty's pleasure was clearly lawful under English law and was not arbitrary. There had not, therefore, been any violation of Article 5(1).

    "The Court did find violations in respect of Article 6(1), the right to a fair trial, and under Articles 6(1) and 5(4) relating to the setting of the tariffs and their continued review.

    "In relation to Article 6(1), the right to a fair trial, the Court found that, notwithstanding the special arrangements which had been made to help ensure that the youths could properly participate in the trial process in the Crown Court, it was highly unlikely that either applicant would have felt sufficiently uninhibited, in the tense court room and under public scrutiny, to have consulted with their legal representatives during the trial or, indeed, that, given their immaturity and disturbed emotional state, they would have been capable outside the court room of co-operating with their lawyers and giving them information for the purposes of their defence. It followed that the applicants had been denied a fair hearing in breach of Article 6(1).

    "With regard to the setting of tariffs and their continued review, the Court first held that there was a fundamental distinction between the sentence for murder in respect of juveniles and that for murder in respect of adults. So far as the latter is concerned--the sentence for adults--in an earlier judgment (Wynne 1994) the European Court had accepted the lawfulness of the mandatory life sentence for adults convicted of murder and the arrangements for tariff-setting by the Secretary of State. Today's judgment does not deal with the arrangements for those adults who have been or will be convicted of murder in the courts of England and Wales. However, in this case involving juveniles, the European Court followed a decision of the House of Lords Judicial Committee that the setting of tariffs for juveniles was itself a sentencing exercise. Since the Home Secretary, who set the applicants' tariffs, was clearly not independent of the Executive, there had been a breach of Article 6(1) in respect of the determination of the applicants' tariffs.

    "In relation to Article 5(4), the Court held that because the applicants' tariffs had been decided upon by the Home Secretary, there had been no judicial supervision incorporated in the initial fixing of their sentences. The Court therefore found a violation of Article 5(4), based on the lack of any opportunity for them to have the lawfulness of their detention assessed by a judicial body.

    "In summary, the Court has found in favour of the United Kingdom Government on two important issues. Those are that Robert Thompson and Jon Venables were never subjected to inhumane

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    or degrading treatment by the Government; and that the sentences imposed by the court were not inconsistent with the requirements of the Convention.

    "But it has found against the United Kingdom on issues relating to the trial process: the way in which the tariff linked to their sentence was set; and the failure subsequently to review the tariff.

    "This judgment does not overturn the verdict of murder in this case, nor does it in any way exonerate the two youths for their part in this terrible crime. This judgment does not direct their release from custody. The Parole Board remains responsible for deciding release in these cases.

    "As with any decision of the Court, Her Majesty's Government accept its judgment. However, in all, the judgment ran to 120 pages. It is important that we proceed as expeditiously as possible but with care. The House will understand that I need to study the detail of what the court has said, and fully to consider its implications. I shall report the outcome of my considerations to Parliament as soon as possible. It will, of course, be for Parliament to agree any change in the legislative framework for dealing with juvenile offenders in these circumstances.

    "The appalling murder of James Bulger, a two year-old murdered by two 10 year-olds, profoundly shocked the country and continues to do so. But the real agony is that felt by James's parents. It is they who have endured and will continue to endure the profound grief of losing their son, a fact which nothing can ever repair".

My Lords, that concludes the Statement.

1.8 p.m.

Lord Cope of Berkeley: My Lords, first, I thank the Minister for repeating the Statement which his right honourable friend made in another place. I agree entirely with what the Home Secretary said in sympathy to the Bulger family and in horror at the crime which lies behind this. Clearly, like the Home Office, we shall all need time to study this long and complex judgment and its consequences.

In relation to the apparent breach of Article 6(1), it is difficult to see precisely what the court would have thought a fair trial to be in those circumstances in view of what is said about the immaturity and disturbed emotional state of the accused in the trial. In any case, it seems that the verdict of the court in this country has not been called into question.

Secondly, will the Minister confirm that he agrees with me that it seems difficult to see that there is quite such a fundamental difference as the European Court suggests between the sentence that someone is detained at Her Majesty's pleasure for juveniles and the life sentence subject to release on licence for adults. Much play was made of that difference which, it seems to me, is difficult to support.

Lastly, as regards the alleged breach of Article 5(4), as I understand it, the Home Secretary did not set a new tariff after the case in the Appellate Committee in

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1997 at least in part because he was waiting to see what would be said in this judgment. Yet now the judgment states that the lack of the setting of a tariff at that stage was a violation because if the Home Secretary had set a tariff then it would have been subject to judicial review and would therefore have been correct or proper in accordance with the convention in those circumstances.

That rather circular type of argument emphasises the difficulties brought about by the delay involved in very long proceedings and different jurisdictions. That can only add to the distress of the Bulger family and those on that side of the case and can only make it more difficult for the offenders to come to terms with what happened and what they did all those years ago. Such delay, which is involved because of the different jurisdictions, is causing increasing worry in relation to the working of the criminal justice system.

1.15 p.m.

Lord McNally: My Lords, is the Minister aware that the BBC Ceefax headline reads:

    "Bulger's killers' trial judged unfair"?

It should be made clear to the man and woman in the street that there is no question that this judgment seeks to overturn the central guilty verdict of the original trial. Therefore, the paragraph in the Statement that the judgment does not overturn the verdict of murder in this case nor in any way exonerate the two youths from their part in this terrible crime is one to make very clear, given the shorthand that our popular press is given to using.

As the Home Secretary said in another place, it was an appalling murder and the grief of James Bulger's parents must be truly inexpressible. I take up a point made by the noble Lord, Lord Cope, although I do not perhaps follow exactly his logic. I welcome the way in which the European Convention on Human Rights has worked and I am pleased that the Government, with our support, have brought it into the body of British law, which may deal with some of the delays to which the noble Lord, Lord Cope, was pointing.

Although we must undertake a thorough study of the judgment, there are already some clear pointers. The system of trial for children is a difficult one which must be thought through. Taking the politicians out of sentencing is clearly a matter of some urgency. One only has to look at the recent publicity about the politicising of the final decision to hang Ruth Ellis to realise that political judgment and justice do not necessarily go hand in hand. I believe that the court is well-founded in pointing us in that direction.

Therefore, we want a thorough review. But we want also an appropriate consideration in relation to when those two boys should be released. It will be one of the most difficult and testing judgments our system has faced. I suggest that both boys should be subjected to the most thorough psychiatric examination before there is any consideration of their release. I could not go along with what were reported to be the remarks of Sir David Ramsbotham a few weeks ago that we all do things at the age of nine that we subsequently regret. I

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go back to the true horror of this appalling murder and feel that we must be absolutely certain that those young men are fit to re-enter society. But that must be a proper judgment, free from political interference.

With that, I hope, will go a clear warning to our popular press in particular that cheque-book journalism and muddying the waters while those judgments are made is unacceptable. We should remember that one of the complaints made to the European Court was that the behaviour of the media at the time of the trial made a fair trial almost impossible.

Finally, there is need now--one hopes to God that it is taking place--for the most careful planning between probation, education, social and other services so that when those boys are released, there is the most careful supervision, providing the best possible chance for their rehabilitation. With that, I hope, goes the most serious warning to the press about their behaviour as that process gets under way.

I have every sympathy for Home Office Ministers at this time. This is the most difficult of difficult cases. It tests our system of justice; our capacity truly to rehabilitate. And it tests the responsibility of the press and the strength of the press code. I have a son who is the age that James Bulger would be now. We are all haunted by the video of a little boy being led to his death. What faces us now is how we give justice to him in death and also give some justice to the two boys, with their lives ahead of them, who deprived him of his.

1.18 p.m.

Lord Bassam of Brighton: My Lords, both noble Lords have spoken with considerable wisdom. I, too, am a parent. I, too, have a child of the age that James Bulger would be were he alive today. Like everyone else in the country, I was appalled and horrified by the crime, as I continue to be.

More than anything else, today is a day for reflection, thought and mature consideration. We, as Ministers, and in particular my right honourable friend the Home Secretary, will consider extremely carefully the 120 pages of judgment handed down to us for our consideration.

Your Lordships have asked important questions. They are precisely the questions on which we must focus. I shall try to respond to some of the points raised. The noble Lord, Lord Cope, asked what changes we intend to make to the whole process. That puts a finger on the key question. We shall have to take very careful account of what was said about the trial process. That was part of the judgment to which it is most important for us to give careful consideration. The noble Lord, Lord Cope, also asked about the difference between the process for dealing with adult and child murderers. In this matter the difference appears to be the indeterminate nature of detention at Her Majesty's pleasure as opposed to the mandatory and determinate life sentence for adult murderers. Clearly, that is a matter we must carefully consider in respect of juveniles.

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The noble Lord, Lord McNally, made a number of important and telling points; not least the way in which these matters are reported. The trial judgment is important here, but the sentence of guilt has gone unquestioned and that has to be absolutely right. There can be no question of that. We need constantly to remind people that our courts have not been seen to fail in that regard. The noble Lord made his familiar points about reporting: the scandal of chequebook journalism and the way in which that can overshadow the importance of a rehabilitative regime for those who are ultimately released following expiry of their sentence.

He made a neat point about politicians and sentencing. In a sense, particularly with juveniles, that comes close to the heart of the some of the issues we will have to unravel and consider in future. Apart from that we need carefully to consider our next moves and take on board carefully the important comments made during the course of considerations here and in another place.

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