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Those are the arguments that the Government put in suggesting that, on balance, it would be advisable to keep this part of Section 229 on the statute book.

Lord Lloyd of Berwick: My Lords, I am very grateful to the noble Lord, Lord Bach, as ever, for his reply. I am always impressed by his arguments, and I am sure that I was impressed by the argument that he advanced in the case in which he said he appeared before me, although I cannot pretend that I remember much about it. However, there is one thing that he said that concerns me—his reference to the fact that he has consulted informally senior members of the judiciary. I am not sure that that is really good practice. I do not think that things should be referred to that have been discussed informally with the judiciary, because we are not in a position to know what exactly the judges have

30 Apr 2008 : Column 255

said. Indeed, I have consulted members of the judiciary about this and other clauses, but I do not think that those discussions should be referred to as an argument in support of an argument in this House.

Having said that, I am not impressed with the answer, any more than I was with the letter from the Lord Chancellor, so I wish to test the opinion of the House.

4.14 pm

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 98; Not-Contents, 148.


Division No. 1


CONTENTS

Addington, L.
Alton of Liverpool, L.
Ashdown of Norton-sub-Hamdon, L.
Avebury, L.
Barker, B.
Bew, L.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Bradshaw, L.
Bramall, L.
Bridges, L.
Burnett, L.
Butler-Sloss, B.
Chidgey, L.
Cobbold, L.
Cotter, L.
Cox, B.
Craig of Radley, L.
Craigavon, V.
Crickhowell, L.
Denham, L.
Dholakia, L.
D'Souza, B.
Dykes, L.
Erroll, E.
Falkner of Margravine, B.
Finlay of Llandaff, B.
Garden of Frognal, B.
Glasgow, E.
Goodhart, L.
Hameed, L.
Hannay of Chiswick, L.
Harris of Richmond, B.
Howe of Idlicote, B.
Hylton, L.
Janvrin, L.
Jay of Ewelme, L.
Jones of Cheltenham, L.
Kilclooney, L.
Kirkwood of Kirkhope, L.
Lee of Trafford, L.
Livsey of Talgarth, L.
Lloyd of Berwick, L. [Teller]
Low of Dalston, L.
Luce, L.
McNally, L.
Mar, C.
Mar and Kellie, E.
Masham of Ilton, B.
Methuen, L.
Miller of Chilthorne Domer, B.
Monson, L.
Murphy, B.
Neill of Bladen, L.
Neuberger, B.
Nickson, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
Onslow, E.
Palmer, L.
Patel, L.
Pearson of Rannoch, L.
Perry of Southwark, B.
Prior, L.
Ramsbotham, L.
Redesdale, L.
Renton of Mount Harry, L.
Roberts of Conwy, L. [Teller]
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Rowe-Beddoe, L.
Russell-Johnston, L.
Sandberg, L.
Shutt of Greetland, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Stoddart of Swindon, L.
Taverne, L.
Tenby, V.
Teverson, L.
Thomas of Gresford, L.
Tonge, B.
Tope, L.
Tordoff, L.
Trumpington, B.
Waldegrave of North Hill, L.
Walker of Worcester, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walton of Detchant, L.
Warnock, B.
Willoughby de Broke, L.
Woolf, L.
Wright of Richmond, L.
Young of Hornsey, B.

NOT CONTENTS

Acton, L.
Adonis, L.
Allenby of Megiddo, V.
Amos, B.


30 Apr 2008 : Column 256

Ampthill, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bhatia, L.
Bhattacharyya, L.
Bilston, L.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell of Alloway, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Corbett of Castle Vale, L.
Crawley, B.
Cunningham of Felling, L.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dear, L.
Dearing, L.
Desai, L.
Dixon, L.
Donoughue, L.
Dubs, L.
Elder, L.
Elis-Thomas, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ford, B.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Giddens, L.
Golding, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greengross, B.
Gregson, L.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Joffe, L.
Jones, L.
Jones of Birmingham, L.
King of West Bromwich, L.
Kinnock, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Malloch-Brown, L.
Marsh, L.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Mitchell, L.
Montgomery of Alamein, V.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Moser, L.
O'Neill of Clackmannan, L.
Ouseley, L.
Parekh, L.
Patel of Bradford, L.
Paul, L.
Pendry, L.
Plant of Highfield, L.
Prosser, B.
Prys-Davies, L.
Quin, B.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Rosser, L.
Royall of Blaisdon, B. [Teller]
Sawyer, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Slim, V.
Slynn of Hadley, L.
Snape, L.
Stevens of Kirkwhelpington, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Tanlaw, L.
Taylor of Bolton, B.
Thornton, B.
Tomlinson, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Vadera, B.
Wall of New Barnet, B.
Warner, L.
Warwick of Undercliffe, B.
West of Spithead, L.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.



30 Apr 2008 : Column 257

4.24 pm

Clause 18 [Indeterminate sentences: determination of tariffs]:

[Amendment No. 4 not moved.]

Clause 28 [Release of prisoners after recall]:

Lord Kingsland moved Amendment No. 5:

The noble Lord said: My Lords, I shall speak also to Amendments Nos. 6 to 10. Amendments Nos. 5 to 9 refer to what is now Clause 28, which must be one of the most opaque clauses in the Bill and, when the Bill becomes law, it will become one the most opaque sections on the statute book. It deals with three distinct classes of offenders.

The first group concerns offenders serving a determinate sentence for offences that are neither violent nor of a sexual nature. The second group concerns those who have received determinate sentences where they are serving sentences for crimes of a sexual or violent nature, or have been assessed as unsuitable for automatic re-release because they present a risk of serious harm. The third and final category covers those offenders who have committed sexual or violent offences and who are serving extended sentences.

In the case of the first category of offenders, if they have been assessed as not presenting any risk of harm to the public and are recalled, the Bill stipulates that they will be in prison for a fixed period of 28 days, at which time they will automatically be re-released. Clause 28 gives the Government power by statutory instrument to alter the figure of 28 days. Two of our amendments seek to remove the power that is available to the Government in the Bill.

In the case of the two other categories of prisoner to which I have referred, the Bill gives the Secretary of State and, in certain circumstances, the Parole Board the power to take decisions about the prisoner’s release. Other amendments in our group affecting Clause 28—Amendments Nos. 5, 7 and 8—seek to insert an extra decision-maker in decisions about release; a Crown Court judge. We believe that it is wrong that decisions about the fate of such prisoners should lie solely in the hands of the Executive. We believe that someone who is properly qualified, outside the Executive, should also play a part in the decision-making process. That is why we propose to add to the Bill,

There is one other amendment in the group, Amendment No. 10; it refers to Clause 30. It concerns the recall of those offenders who have received a life sentence but who are now out on licence. Once again, the Bill gives the discretion to recall those former prisoners to the Secretary of State and, in certain circumstances, to the Parole Board. A recent decision of the Court of Appeal suggested that the Parole Board, at least in certain circumstances, is not independent of the Secretary of State. Once again, we believe that another party should be involved in decisions about those who have received a life sentence but who are now out on licence. In this case, our amendment inserts a reference to the Lord Chief Justice.



30 Apr 2008 : Column 258

The background to these amendments was very fully debated in Committee and I do not propose to say anything further in support of them. I beg to move.

Lord Bach: My Lords, I am grateful to the noble Lord for tabling the amendments. These are important matters and they allow us to debate the provisions of the Bill relating to the release and recall of prisoners. Amendments Nos. 5, 7 and 8, amending Clause 28, have the effect that, where recalled determinate-sentence prisoners have been assessed by the Secretary of State as safe to re-release, there would be a requirement for their cases to be referred to the Crown Court so that the court could review that decision.

Our main concern at this proposal is that it would place a substantial added burden on the Courts Service. To give some indication of the scale of this burden, in 2007-08 the Parole Board conducted over 14,000 recall reviews. We are also of the opinion that the process for dealing with such referrals would be slow and bureaucratic. Prior to 1999, all recalls in respect of prisoners serving less than four years had to be pursued through the courts. It was a more complex process which was rarely used, but it was one of the reasons why we extended executive recall provisions in the first place. We are not convinced that the proposal would enhance public protection in any significant way.

I remind the House that prisoners serving sentences for sexual or violent offences are automatically precluded from being given a fixed-term or 28-day recall. Those serving sentences for offences other than sex or violence can be given a fixed-term recall only if they are assessed as not presenting a risk of serious harm.

I also remind the House that all recalled prisoners have a right to have the recall decision reviewed by the independent Parole Board, thus providing offenders with a means of redress. Our recall provisions are designed, frankly, to reduce the burden on the Parole Board and on the Prison Service and will assist in achieving our objective to focus prison and the Parole Board’s resources on the most dangerous offenders. We have carefully considered the noble Lord’s amendments but I am afraid we cannot accept them.

Amendment No. 10 seeks to amend Clause 30 in respect of the recall of life and indeterminate-sentence prisoners. I can assure the House that we recognise that recalling a life-sentence prisoner has potentially serious consequences. It could result in the offender spending the rest of his or her life in custody. That is why such decisions are not taken lightly and why all such decisions are subject to review by the Parole Board. Amendment No. 10 requires all recalls of life or indeterminate-sentence prisoners to have the approval of a judge.

We fear that this amendment would build a potential source of delay in the recall process, during which further serious crime could, unfortunately, be committed. The purpose of recall action is to enable the Secretary of State to take swift and preventive action in removing potentially dangerous offenders from the community. We think it is a crucial means of public protection. The current provisions for the recall of a life-sentence prisoner—this is an important

30 Apr 2008 : Column 259

issue but I shall be as quick as I can—are to be found in Section 32 of the Crime (Sentences) Act 1997. That section provides two routes for recall. Section 32(1) enables the Secretary of State to recall, having first consulted the Parole Board and received a positive recommendation. But Section 32(2) enables the Secretary of State to recall a life-sentence prisoner without prior consultation with the board where it is,

The clear inference of the statute as it now stands is that in the majority of cases a lifer recall will be pursued through the Section 32(1) route—the Parole Board route—and that the Secretary of State will recall a lifer without prior consultation with the Parole Board only where such consultation is not possible in an individual case.

The House will know that for life-sentence prisoners released into the community on life licence, the threshold for recall is high. An increased risk of reoffending by itself is not sufficient to warrant recalling them to prison. The Secretary of State must be satisfied that the prisoner presents an unacceptable risk to life and limb. To warrant a life or indeterminate sentence it follows that a prisoner will have been convicted of the most serious sexual or violent offences. When their conduct has deteriorated to such a degree that they are assessed as presenting an unacceptable risk to life or limb, it is invariably in the interests of public protection that the recall process facilitates their swift removal from the community.

In practice therefore, nearly all recalls are effected administratively as we speak. We accept that there is no limit on the number of cases that may be decided under the public expediency recall procedure—that is, Section 32(2), which gives the Secretary of State his powers. However, the spirit of the legislation leans towards the primary mechanism for deciding to recall a lifer through a Parole Board recommendation. But in the period from October 2002 to March 2007 more than 80 per cent of decisions to recall lifers were made without a Parole Board recommendation. I can reassure the House that those decisions have been entirely correct in law on the basis that it was expedient in the public interest for the Secretary of State to exercise his power of executive recall without consulting the Parole Board.

Nevertheless, we are concerned to ensure that the statutory framework reflects current operational practice, and that the operational practice could not be seen as undermining Parliament’s intention. For that reason, Clause 30 places our current operational practice on a firm statutory footing. We also recognise that it is critical that there are strong and effective safeguards in place to ensure that the decision taken by the executive is open to challenge by the offender, and even if not challenged, is open to robust scrutiny by an independent body. That is what the review by the Parole Board achieves.

The Parole Board will invariably have an oral hearing to consider the representations of life-sentence prisoners. Such hearings are normally chaired by a judicial member. The prisoner is entitled to be present, legally represented, and to call witnesses. The board has the power to direct the prisoner’s immediate re-release if it is satisfied

30 Apr 2008 : Column 260

that it is safe to do so. This is a question of balance and we recognise that it is important to strike the right one between being able to take swift, preventive action to protect the public on the one hand, and ensuring that such decisions are subject to robust scrutiny. That is why we believe that putting Clause 30 into the Bill is the appropriate measure to achieve that balance.

I can be shorter and more helpful to the noble Lord, Lord Kingsland, on his two remaining Amendments Nos. 6 and 9. They would remove the power to amend the period of time an offender must serve before being automatically re-released if given a fixed-term recall or the period other recalled offenders must serve before the Secretary of State must refer their case to the Parole Board.

Having given careful consideration to these amendments, and expressing our gratitude to the noble Lord, Lord Kingsland, in particular, and having listened to other noble Lords in debate, we are prepared to accept those two amendments. We will need to bring forward a consequential amendment when the Bill returns to another place.

Lord Kingsland: My Lords, first, I am most grateful to the Minister for acceding to Amendments Nos. 6 and 9. No doubt there will be certain changes in the drafting by the Government in order to stamp their own inimitable character on these provisions.

Lord Bach: My Lords, the noble Lord’s point should be called the “Hunt rule”, as it was clearly expressed by my noble friend: no Government ever accept an amendment, however perfectly drafted, by the Opposition.

Lord Kingsland: My Lords, it will come as no surprise to the Minister to learn that I am disappointed by his reaction to our other amendments. He underlined the importance of speed and effectiveness in the recall process in relation both to those categories in Clause 28 to which I referred and to the life sentence category in Clause 30. I understand that those are important considerations.

On the other hand, individuals are effectively having their liberty removed from them, often for a very long subsequent period. In my submission, the judicial arm of the constitution ought to play a role in that decision. That is what lay at the heart of our amendments. The Minister has been adamant: he will give no ground. I thought very carefully about what I should do at Third Reading. In the end, I have decided not to press these amendments, but I would not want the Minister to think that strong feelings on the part of the Opposition did not lie behind them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland moved Amendment No. 6:

On Question, amendment agreed to.

[Amendments Nos. 7 and 8 not moved.]

Lord Kingsland moved Amendment No. 9:

On Question, amendment agreed to.



30 Apr 2008 : Column 261

Clause 30 [Recall of life prisoners: abolition of requirement for recommendation by Parole Board]:

[Amendment No. 10 not moved.]

Clause 41 [Power of Court of Appeal to disregard developments in the law: England and Wales]:

The Advocate-General for Scotland (Lord Davidson of Glen Clova) moved Amendment No. 11:

“Appeals following references by the CCRC(a) the only ground for allowing it would be that there has been a development in the law since the date of the conviction, verdict or finding that is the subject of the appeal, and(b) the condition in subsection (3) is met.(a) the reference had not been made, but(b) the appellant had made (and had been entitled to make) an application for an extension of time within which to seek leave to appeal on the ground of the development in the law,the Court would not think it appropriate to grant the application by exercising the power conferred by section 18(3).””
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