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The Government simply seek to inform noble Lords that when, for instance, we come to the noble and learned Lord, Lord Lloyd, proposing that Clauses 42 and 43 do not stand part of the Bill, we will not oppose that. In answer to the noble Lord, Lord Henley,

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that is how we expect the business to be dealt with. There may be some consequential amendments as a result of the noble and learned Lord opposing those clauses, which the Government would introduce on Report. But that is how we seek to proceed. There is a little time before we reach that stage and, if there are other matters of concern, the usual channels will be available and will speak to the noble and learned Lord. I have tried to keep him informed and am most grateful to him for his co-operation.

I think that that covers the matters raised. I am most grateful to the House for its tolerance for allowing me to explain the Government’s proposals in this area.

Lord Neill of Bladen: My Lords, will the Minister be kind enough to indicate an answer to the question that has been raised on how far we are going to get? Is he planning to get as far as Clause 128, the clause in which I happen to be interested, as are the noble Lords, Lord Lucas and Lord Thomas of Gresford? When I came here today it seemed to be very well down the batting list and that we would get to it next week. Is it coming up this afternoon?

Lord Hunt of Kings Heath: My Lords, it would be very foolish of me to attempt to dictate to the House where we should get to tonight—and almost certainly the House would ensure that we did not reach it. It would be very unlikely that we would go into Part 7, if that helps. It is very difficult to give an indication of where we will get to.

The Earl of Onslow: My Lords, with every Bill that one has ever debated there is an aim. You come in and ask at the desk how long the debate is going to go on for and the desk will say that the aim is to get to Amendment No. 100, or whatever. Sometimes we hit the target and sometimes we do not, but surely the Minister—after his evisceration of the Bill—must have some idea about which amendment we will get to tonight.

Lord Henley: My Lords, perhaps I can assist the Minister. Following the interventions of the noble and learned Lord, Lord Neill, and my noble friend Lord Onslow, perhaps the Minister could give a guarantee that we would not get on to Part 7. I was going to say that we should not go beyond Part 6, but then Parts 5 and 6 do not exist any more.

Noble Lords: Oh!

Lord Henley: Sorry, my Lords, it is Parts 4 and 5 that do not exist. But I am quite happy to do Part 6 tonight, partly because no amendments have been tabled to it, as long as we do not reach Part 7. That would make life a lot easier for the noble and learned Lord, Lord Neill, and the rest of the House.

Lord Hunt of Kings Heath: My Lords, I am very happy to agree on behalf of the Government that we should not go beyond Part 6, if that would help noble Lords. Beyond that I ought not to say anything.

On Question, Motion agreed to.

House in Committee accordingly.

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[The LORD SPEAKER in the Chair.]

Clause 29 [Release of prisoners after recall]:

Lord Kingsland moved Amendment No. 93:

The noble Lord said: I shall also speak to the other amendments in this group. The approach we have taken to Clauses 29 and 31 is to conclude that there is insufficient involvement by the judiciary in the decisions that have to be made. Accordingly, in the case of Clause 29 we have tabled several amendments which contain the expression,

and in the case of Clause 31 we have inserted,

Clause 29 deals essentially with three categories of offenders. The first is offenders serving a determinate sentence for offences that are neither violent nor of a sexual nature. If such prisoners, having been assessed as not presenting a risk of harm to the public, are recalled, the Bill says that that will be for a fixed period of up to 28 days, at which time they will automatically be rereleased.

The second group is determinate sentence prisoners serving sentences for crimes of a sexual or violent nature, or who have been assessed as unsuitable for automatic rerelease because they present a risk of serious harm, or have already served one fixed-term recall and as a result are no longer eligible for automatic rerelease. The Bill allows for such prisoners to be rereleased through two routes. In the first the Secretary of State has discretion to examine the case and determine whether rerelease should occur. That involves determining that the offender is safe to be released. A decision will be taken by the Secretary of State alone on the basis of an up-to-date risk assessment provided by probation staff. If the Secretary of State is not satisfied on the matter, there remains the option, as exists now, of the Parole Board.

A third and final category in the amendment, which also replicates the original clause, is those sexual or violent offenders who are serving extended sentences. Such prisoners will be rereleased only if the Parole Board recommends it. If the board does not consider it safe to rerelease them following their recall, they could be held until the end of their sentence.

At the outset I said that my main concern about the treatment of all these categories was the absence of any judicial input or discretion. That applies in two different ways depending on which category we are looking at. In the first category, which is offences that are neither violent nor of a sexual nature, what the Bill requires is too automatic; in every case, irrespective of the nature of the offence or the conduct of the individual, there will be a straightforward return to prison for 28 days and then automatic release.

That simply does not take account of the specific circumstances of the matter. It treats all breaches as having exactly the same seriousness. There should be a discretion here for the judiciary as to whether to recall

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to prison and for what period. What should determine the length of the prison sentence to which the individual returns should be the nature and seriousness of the breach. Nothing in the Bill allows that to happen. On the other hand, when one looks at category 2, one finds that the Secretary of State is given an exclusive right to determine what should happen. We consider this wholly inappropriate. If somebody other than the judge should be given that discretion, it ought in all cases to be the Parole Board. As far as Clause 29 is concerned, these problems would be cured if the agreement of a Crown Court judge was required before the matter was finally determined.

4 pm

A rather different consideration is at issue in Clause 31, the explanatory title of which—“Recall of life prisoners: abolition of requirement for recommendation by Parole Board”—is misleading. Under Section 32 of the Crime (Sentences) Act 1997, the Home Secretary already has the power to recall a prisoner serving a life sentence released on licence without a prior recommendation from the Parole Board. Although the Home Secretary is normally required to follow the board’s recommendation, Section 32(2) of the 1997 Act provides that the Home Secretary may recall a prisoner without a prior recommendation in exceptional cases,

Rather than enable the Home Secretary to recall life prisoners without a recommendation—a power he already has under Section 32(2)—the true effect of Clause 31 is to free the Home Secretary from the requirement to have regard to the public interest when exercising this power in exceptional cases.

As far as I am aware the Government have put forward no evidence to show that the current provisions have ever inhibited the Home Secretary’s ability to recall a life prisoner where he or she has deemed it necessary to do so. Nor is there any evidence to show that the current power to recall without a recommendation in exceptional cases has ever proved insufficient. In the absence of such evidence, we see no sound policy reason why the Home Secretary should be freed of the requirement to act in the public interest when recalling a prisoner. In the absence of such a safeguard it is clear that an elected politician would be susceptible to public disquiet and anger about individual cases. The liberty of the subject, even that of a prisoner convicted of the most heinous of crimes, is too important to be left vulnerable to such pressures. I beg to move.

The Earl of Onslow: It strikes me as bad principle that the Executive should be too involved in sentencing, especially extending sentencing. It is different if it can be classed, for want of a better word, as a prerogative of mercy; in other words, the Crown, through her servants, can show somebody mercy and reduce a sentence. But the Crown, through her servants, should not be able to increase a sentence, which is in effect what denying a release order or calling somebody back comprises.

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I am guessing a little here but I suspect that this applies to a very large number of people. I suggest that most of the decisions will be taken by officials. I make no attack on officials; they are men of honour and integrity and they make the right judgment in their view, but surely they would be acting as judges in effect. If that is the case, should this not be done by judges themselves, given all the publicity aspects attached to the judiciary because this is done in open court? For those reasons I believe that my noble friend on the Front Bench has produced exactly the right set of amendments for this occasion.

Lord Wallace of Tankerness: I support the amendment moved by the noble Lord, Lord Kingsland, and spoken to by the noble Earl, Lord Onslow. The fundamental point about the involvement of the judiciary, and not leaving it solely to the Executive, is important. As the noble Earl, Lord Onslow, indicated, there is no doubt as to the diligence and proper way in which these matters will be addressed by officials or, indeed, by a Secretary of State.

Nevertheless, the issues require some form of judicial or quasi-judicial input and consideration. That is what I understand the amendments of the noble Lord, Lord Kingsland, to seek to achieve. Particularly on Clause 31, it is incumbent on the Minister to explain why the Government wish this measure, which would remove from the equation—at the initial stage of recall, anyway—the role of the Parole Board. The noble Lord, Lord Kingsland, has given a good analysis of the current situation. Secretaries of State are not currently fettered if in an emergency they wish to recall a prisoner on licence before the Parole Board has an opportunity to consider the particular case. That is currently open to the Secretary of State under Section 32 of the Crime (Sentences) Act 1997; although it is important to note that, in doing so, the Secretary of State must have regard to whether it is expedient in the public interest to recall without reference to the Parole Board.

The concern on these Benches is that taking away that condition of having regard to the public interest and putting these matters entirely in the hands of the Secretary of State without prior reference to the Parole Board gives too much power to the Executive without proper oversight from either the judiciary or the Parole Board. That is not an appropriate power to be given to the Secretary of State. The important point for the Government to answer is what mischief, concern or problem they are seeking to address through this. Are the provisions under Section 32(2) of the Crime (Sentences) Act 1997 not adequate to address situations where there is a degree of urgency in recalling a prisoner—that is, revoking a licence and recalling someone to prison?

Before we give that unfettered power to the Secretary of State, a case must be made for it. The best thing to do would be to leave the law as it is. However, if the Government insist on the clause in this Bill, the kind of judicial oversight proposed by the noble Lord, Lord Kingsland, would be an important check on the Executive. However, the Government have a duty to explain to the House the reason for Clause 31.

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Lord Elystan-Morgan: I have some sympathy with the amendment of the noble Lord, Lord Kingsland. I appreciate that, in an ideal world, judicial decisions should never be made by non-judicial personnel. That has never worked out in practice. As far as the Home Office is concerned, quasi-judicial decisions have very much been a part of its role all along. One only has to think back to pre-1965 days, when the Home Secretary had the ultimate discretion to commute a sentence of death to one of life imprisonment. One can hardly think of a judicial decision that so blatantly belonged more to the judiciary than a politician.

There is some lack of consistency here, which is not something one could often hold against the noble Lord, Lord Kingsland, who is normally so perfect in his remorseless and unremitting logic. In this situation, however, we have a case where a person is already within the bounds of a sentence. Within the scope of that sentence, he has already been released. Further along the line, he has committed some breach of licence and been recalled, not by a judge, but by the Home Secretary. If in fact there was an overwhelming case for a judicial person to intervene here, it would be surely at that stage—the stage of the recall. The infraction for which the prisoner is responsible may, indeed, have been fairly trivial and borderline, but the Secretary of State—in practice, a skilled and senior official—will determine whether he should be recalled. Once you have allowed that to take place, surely it is not illogical to allow the release after recall, still within the bracket of the totality of that sentence, to be determined by a non-judicial officer—although one trusts that in his semi-judicial capacity he would act judiciously.

Lord Thomas of Gresford: Would not the noble Lord think it appropriate that the civil servant who took the decision to seek recall should make his case to a judicial personage—whether it be the Lord Chief Justice or a judge appointed by him? Surely that is the way in which the system works in this country.

Lord Elystan-Morgan: I do not think that there would be anything contrary to principle for that to happen, but it would be much more important in the first place—in the determination of whether a person should be recalled—rather than at the latter stage. At that latter stage, the non-judicial officer would undoubtedly have before him or her a vast array of reports that better enabled a decision to be made on the safety of releasing that person—more than when making the original decision about recall. Furthermore, I cannot speak for current circuit judges, but as a former circuit judge, I doubt very much whether they would want their desks to be cluttered by vast lists of responsibilities of this nature.

The Earl of Onslow: I am sorry to intervene again, but surely what the noble Lord has argued for in his package of sentences is that people should be recalled only with judicial oversight, rather than just at the whim of the Secretary of State. Personally, that is what I would prefer, because it relates to the great question of the separation of powers.

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Lord Elystan-Morgan: The noble Earl is entirely correct in terms of pure theory and logic, but I doubt very much whether what he said could be operated in practice. The sheer burden of the totality of these decisions is not one that the present staffing of the judiciary would be able to bear. I stand to be corrected with regard to that.

Lord Thomas of Gresford: Would the noble Lord consider that this is confusion? He referred to the death penalty and the power of the Home Secretary to commute it. That was an exercise of the royal prerogative of mercy, was it not? It is really nothing to do with the sort of issue that we are discussing. Has not that system in some way percolated into the idea that a civil servant, by a stroke of a pen, can bring a person back to prison, perhaps for the rest of his life?

Lord Elystan-Morgan: The fact that it was the exercise of the royal prerogative of mercy does not affect the argument, in my respectful submission. It was one of the most fundamental decisions that could ever be made in our criminal system. It was a decision whereby all the circumstances of the case had to be brought into account, and if ever there was a decision that should have been made by the judiciary, rather than by the Administration, that was it. The fact that the royal prerogative was involved does not change the situation. For example, the old law—and, indeed, the current law—of wardship vests in a judge of the High Court powers which have been delegated by Her Majesty the Queen as parens patriae—the parent of the nation. The fact that it is an exercise of the royal prerogative does not mean to say that a judge is not entitled to act in that capacity.

The Earl of Onslow: Surely the parallel with the death penalty is false, because what the Home Secretary did not have the power to do was to say, if the man had been sentenced to life imprisonment, “No, we’ll have him hanged instead”. He could not increase the sentence; he could only decrease it. Those of us on this side are unhappy that the present Bill offers the prospect that the Executive can, in effect, increase a sentence, rather than decrease it. In my view, the Executive can decrease but not increase.

Lord Elystan-Morgan: We can debate endlessly on this matter; indeed, I am somewhat flattered that my remarks, innocent as they were, have been taken up and challenged by so many noble Lords. The fact is that there is no increasing or decreasing in sentence. There is the totality of sentence within which there has been, first, a licence, secondly, a breach of licence and, thirdly, a release of a person after such a breach—but all within the sentence.

4.15 pm

Lord Hunt of Kings Heath: This has been a very interesting debate, but in debating the balance between the roles of the Executive and the judiciary we have perhaps not discussed the role of the Parole Board. That ought to provide a great deal of reassurance to noble Lords on these matters, because of the rights of persons concerned to ask the board to consider them. That is how we get the balance right between having

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the necessary assurances that these matters are dealt with appropriately, while having a system that is efficient and does not produce those great burdens either for the Parole Board or the judiciary if the amendments were to be accepted.

I would say to the noble Earl, Lord Onslow, that these recalls are not to be done at a stroke of an official’s pen, affecting the rest of an offender’s life. All offenders have their right to have their recall reviewed by the Parole Board and, as the noble Lord, Lord Elystan-Morgan, suggested, the Executive cannot increase a sentence. A recall will be within the sentence period laid down by the court on conviction. The question is: where is the balance?

The Earl of Onslow: It is the punishment that is being increased within the sentence. Lay persons, or non-lawyers like me, at least, would see a difference between being “in nick” and “not in nick”. It is much nicer not be in nick than to be there. Therefore, if that “nickdom” is increased, it counts as a punishment. I quite accept that what the noble Lord, Lord Elystan-Morgan, and the Minister are saying is technically correct, but that is how it appears to a non-technician.

Lord Hunt of Kings Heath: Well, I am a non-technician in this area, but it seems to me that one cannot ignore the conditions under which recall takes place and the criteria that have to be followed. I argue that in general that we have the right balance, although no doubt Members of the Committee will want to discuss that further.

Perhaps I can explain the Government’s intent with the clauses and respond to a number of the points raised. The noble Lord, Lord Kingsland, has suggested in his amendments a proposal to refer to the Crown Court prisoners who have either been recalled for a fixed period, or who have been assessed by the Secretary of State as safe to re-release, to consider whether the offender is indeed safe to be re-released.

One of our concerns, as the noble Lord, Lord Elystan-Morgan suggested, is that this would be a rather slow and cumbersome process. We do not believe that the unnecessary involvement of the courts would enhance public protection, but it would place a substantial burden on the court service. For instance, to give some indication of the scale of this burden, in 2007-08 the Parole Board conducted more than 16,000 recall reviews, which is a huge number. I understand that part of the motivation is to ensure that public protection is enhanced. Prisoners serving sentences for sexual or violent offences are already automatically precluded from being given a fixed-term recall. Further, under the proposed provisions, a fixed-term recall can be given only to offenders who are not assessed as presenting a risk of serious harm.

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