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Earl Russell: My Lords, I do not know how many of your Lordships read the small print in The Times in the depths of mid-August. I admit that I do not very regularly do so myself, but on this occasion, I needed to brief a candidate in the Brent by-election. I discovered that, in Norway, so many people are sentenced to prison that they have had to introduce a waiting list for prison places. I understand that it is approximately two years long. That illustrates that a policy of severe sentencing may in the end turn out to be self-defeating.

I will leave the House with a quotation from Lord Williams of Mostyn, speaking on the Crime (Sentences) Bill, in which the mandatory sentence was extended. He asked whether the judge would be expected to tell the prisoner:

Lord Thomas of Gresford: My Lords, the mandatory life sentence is a dishonest fiction, which gives no comfort to victims' families, for all the reasons already stated. It also distorts the criminal law in a significant way. It is a mandatory sentence, therefore defendants plead not guilty and there are defences of provocation, lack of intent, self-defence and so forth, all of which cause considerable difficulties. The public would understand if the mandatory life sentence were abolished and the judge could pass what he considered to be the appropriate sentence for what has been done—whether whole life for a sadistic killing or a matter of months or a year for a mercy killing. It would satisfy the need for justice that the victims' families feel and it would be a great advance on the present situation.

4.45 p.m.

Lord Borrie: My Lords, if someone is convicted of murder, he should be liable to be sentenced to life. However, we have an opportunity to change the present law and it is surely not worthy of this Parliament to allow the present rule to continue—that a person convicted of murder must be given a life sentence. That is not worthy of Parliament because it is so remote from reality. We know that many convicted murderers will not in fact serve life—that much is known at the time, by the judge who is currently required to say certain false things.

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The only arguments on the matter that we heard from my noble friend the Minister in Committee were adequately answered by the noble and learned Lords who proposed the amendment. Nearly 40 years after the abolition of the death penalty, it is surely not necessary to have this provision to satisfy a public that perhaps still wishes to have a death sentence for murder. After all this time, surely it is not necessary to continue with the fiction that the substitute for a death sentence is always and invariably life imprisonment.

Lord Hylton: My Lords, I venture to support this amendment, speaking purely as a layman. I do so because I have given considerable thought to cases such as that of Private Clegg, which has already been mentioned. There have been others in Northern Ireland—that of Guardsman Fisher among others. A person manning a checkpoint is put in the extremely difficult position of deciding, in probably less than a second, whether to shoot, which may cause innocent death, or whether not to shoot which may allow a car bomb to go through and kill dozens or hundreds of other people. Such things have arisen in Northern Ireland and could arise in Iraq.

In Australia, there is a crime of causing death by using excessive force. We do not have that and Schedule 20 says nothing about causing death by excessive force. It does however provide for a minimum tariff of 15 years. Those are the reasons for which I believe the amendment is necessary.

Baroness Anelay of St Johns: My Lords, I do not support the amendment. When we on these Benches were in government we did not support discretionary sentences for murder and we do not do so now. That position is wholly consistent with a Division that I invited noble Lords to join me in last week, when we removed minors under the age of 18 from the operation of Schedule 19. However, within that amendment, I ensured that the mandatory life sentence remained.

I will not repeat the arguments that have come from these Benches in the past, because Third Reading is not the time for that. However, I was interested—as always—in the arguments put forward by the noble and learned Lords, Lord Ackner and Lord Lloyd of Berwick. They are always beguiling in the way in which they adduce their arguments, but I am not going down their line today and I cannot foresee that I will go down their line in the future.

I was especially intrigued by the points made by the noble and learned Lord, Lord Ackner, when he said that there may be a misapprehension about lengths of sentences. The noble and learned Lord read out some comments, the purport of which was to say that we need not be too alarmed about having a discretionary life sentence. We could persuade the public by saying, "Don't worry, life sentences won't be any shorter than they are now". Even if I were prepared to argue on that basis—which I am not, I will stick to my principles on this—my next point would be that those comments were made before the provisions of this Bill were

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introduced. It would be even more difficult for judges in the future to pass a life sentence if it were discretionary, in terms of this Bill.

As we have debated at length in Committee and on Report, we on these Benches think that there is a lot of smoke and mirrors about the sentencing in this Bill. Release after serving half the term of a sentence would not bring the honesty in sentencing that the noble and learned Lords are quite right to want to achieve. I agree that there is no general understanding about what a life sentence means. However, unlike them I do not think that the solution is to go for a discretionary sentence. The solution is that all of us have a duty to ensure that the explanation is more properly given to the public. It is only fair to say that, if there were a Division, I would, in my capacity as a spokesman and for myself, support the Government.

Baroness Scotland of Asthal: My Lords, I thank the noble Baroness for her support. I hope not to speak too long. I do not want to re-tread the ground that we have already covered so comprehensively in Committee and on other occasions. However, there are a few things that I must say in response to the arguments so fully set out by the noble and learned Lords, Lord Ackner and Lord Lloyd of Berwick.

First, I agree with the noble and learned Lords that Parliament has had several opportunities to abolish the mandatory life sentence. I also agree that on no occasion were both Houses in agreement that it should be done. On the previous occasion and today, the noble and learned Lord, Lord Ackner, referred to the Nathan Select Committee, which, I believe, reported on the desirability of mandatory life sentences in 1989. The noble and learned Lord is right to say that the Committee held the view that the mandatory life sentence should be replaced with a maximum sentence of discretionary life. The government of the day did not accept that recommendation, and neither do we.

Several noble Lords said that the life sentence was a fiction. The noble Lord, Lord Thomas of Gresford, went so far as to say that it was a dishonest fiction. The noble Earl, Lord Russell, referred to the example given by Lord Williams of Mostyn. My noble friend Lord Borrie asked why we would not change it, and he was supported by the noble Lord, Lord Hylton.

It is not a dishonest fiction. There is a misunderstanding of what "life" means. A "life sentence" means just that: it extends to the whole of the defendant's life. There is a misunderstanding about the fact that part of the life sentence will be spent in custody and the remainder in the community. It is possible for a person, for the duration of their life, until the day on which they die, to be recalled to prison, if they breach the undertakings or conditions on which they remain in the community on licence.

We have made it clear in the Bill that we intend the licence to have meaning. It is sad that many of those who deal with the issue of life sentences wrongly believe that the sentence ends on the person's discharge from prison, when it does not. When the

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noble and learned Lord, Lord Lloyd of Berwick, says that a life sentence does not mean life and that, in some way, it means nothing, I must, with the greatest respect, wholeheartedly disagree with him. Many of those who are subject to a life sentence say that, for the rest of their days and notwithstanding the fact that they are no longer within the four walls of a prison, they are conscious of being imprisoned by the knowledge that, if they transgress in any way, they may be recalled to prison to continue their sentence in incarceration. For them, that has great meaning. Your Lordships will find that few prisoners who have been thus released will say, as the noble and learned Lord said, that it means nothing. It impinges on the quality of the liberty that is given them. There are those who say, for that reason, that someone who has served their time in prison should no longer be subject to such restraint. We disagree. I hope that your Lordships will understand why we do not see it as a fiction and do not agree with the comments made by the noble Lord, Lord Thomas of Gresford.

Nor do we agree with the comments made by my noble friend Lord Borrie, although I understand why he made them. It is 40 years since the abolition of the death penalty, and it is because we wish to maintain the present position and not have it reintroduced that we maintain that it is important to keep the idea of release on licence. We must make it mean something.

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