Criminal Justice and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Monday 14th July 2014 Lords Chamber

[Lord Lloyd of Berwick (CB)]

My Lords, for the reasons that have already been given, I support the amendment and I do so all the more willingly because it is very similar to an amendment which I tabled two years ago when we were debating the LASPO Bill. A very significant difference between the two amendments is that I thought that the review should take place after 30 years rather than 25 years. My reason was that 30 years is one of the starting points for determining tariffs under Schedule 21. A defendant with a 30-year starting point and no mitigating or aggravating features would look forward to a review after 30 years but not before. It would not particularly make sense that a whole life prisoner should have a right of review after 25 years when one with a 30-year starting point would have to wait for 30 years, but that is a small detail.

The debate on my amendment took place on 9 February 2012, at col. 390. There were 12 speakers on that occasion. All, except the noble Lord, Lord McNally, supported the amendment. The only reason which the noble Lord gave for not supporting the amendment was that the public was not yet ready for it and, for that reason, the other place would not accept it and there was no point in it passing through this House. During my reply, he said that it would be easier to reach unanimity if we could arrange a joint meeting of both Houses. That is exactly what has now happened in the sense that we have the Joint Committee on Human Rights, which includes Members from the House of Commons and the House of Lords. So far as I know, there was no dissentient voice from any Member of the Commons. Perhaps we may put that objection on one side.

Until 2003, there was no doubt that exceptional progress in prison qualified a lifer serving a whole life tariff for a review after 25 years. Somehow, that right was overlooked when the 2003 Act was being pushed through Parliament. There was no evidence that I know of that the right of review after 25 years was causing resentment or was in any way unpopular with the public. Certainly, those serving these sentences had done nothing that I know of to forfeit the right which they then had. For my part, I cannot believe that anyone in government made a conscious decision to remove this right. It seems almost inconceivable that they would have done, but there we are. All we seek to do in this amendment is to restore to these prisoners a right which they have lost, so far as I am concerned, for no apparent reason.

There are other equally strong arguments to support the amendment. Prisoners serving tariffs of 20 or 30 years are entitled to a review after they have completed their tariffs. It gives them light at the end of the tunnel and provides them with a reason for making progress if they can. In those cases, the review is justified both on practical grounds and on humanitarian grounds. Will the Minister say why those reasons precisely do not apply to those serving whole life sentences? One might think that it should apply all the more so. It cannot be that they are being deprived of this right for some symbolic reason, but if that is the case I would be very glad to hear about it.

I could understand if the Minister said, like the noble Lord, Lord McNally, that this amendment would never be accepted at the other end of the corridor, but I would have no sympathy with him at all if he said that we should wait until the Supreme Court has decided the appeal in McLoughlin. The decision in Vinter is clear: a life prisoner is entitled to know at the start of his sentence what he has to do to qualify for a review after 25 years. It is equally clear that exceptional progress in prison would be a qualifying ground. But Section 30 of the 1997 Act provides that a prisoner can be released only on “compassionate grounds”. A prisoner who has earned his review by making exceptional progress is not being released on compassionate grounds in any ordinary sense of that term. Whatever the Supreme Court may say, we will need primary legislation to change the word “compassionate” or make clear what the word “compassionate” means. I would have thought that we would need a different word or an additional word. That will require primary legislation. I see no reason to wait until the Supreme Court has expressed a view. Indeed, if we had the primary legislation now, maybe there would be no need for a hearing at all. We should, in my view, grasp the nettle now. That is why I support the amendment.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I add only this to the point made by the noble and learned Lord, Lord Lloyd, in answer to my noble friend Lord McNally’s response. Not only is the Joint Committee on Human Rights composed of Members of both Houses, but members of all parties agreed unanimously on this report. My reasons for supporting the amendment are threefold. First, it is a matter of simple humanity. Secondly, I agree again with my noble friend Lord Lester and the noble and learned Lord, Lord Lloyd, that I do not believe the decision of the Court of Appeal in McLoughlin has put the current position in English law beyond doubt in the light of the clear decision of what is required by the Grand Chamber of the European Court of Human Rights in Vinter. In any event, it is for Parliament to make the law clear on this issue. Thirdly, our obligation to honour our treaty commitments is an absolute one that must not be shirked.

My first point is the point of substance, independently of the convention: a whole life tariff without the prospect of review is incompatible with a humane approach or human rights-based approach to punishment. I remain firmly committed to the principle that one of the primary purposes of punishment is rehabilitation. This is embodied in statute law by Section 142 of the 2003 Act, which is the very Act on which whole life sentences are based. That provides, under the heading “Purposes of sentencing”, that:

“Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing”,

the third of which is;

“the reform and rehabilitation of offenders”.

The imposition of a whole life order without any hope of release on rehabilitation grounds is incompatible with that statutory purpose of sentencing. It does not follow that a whole life tariff cannot be imposed by the sentencing court, but it does follow that, when sentencing, a judge should know and the offender should know that there is some prospect at least that in exceptional circumstances there will be a power to enable the offender’s release other than on purely compassionate grounds. Of course, it is understandable that in the case of the most heinous crimes the purpose of rehabilitation comes low down the list, but the absence of any possibility of review except on compassionate grounds, interpreted in the “Lifer Manual” as being, effectively, only in the case of terminal illness, removes hope completely in a way that is inhumane.

My second point is one that has been made: that the judgment of the Grand Chamber in Vinter was unequivocal. The court was absolutely clear that the effect of such an order is that a prisoner cannot be released other than at the discretion of the Secretary of State. I urge on the House the point made by the noble Lord, Lord Pannick, that the Secretary of State should not be the decider. There should be an independent body. That release would occur only on compassionate grounds under our statute. The court therefore held that a whole life order of imprisonment violated Article 3, which prohibits inhumane and degrading treatment and torture.

The United Kingdom judge, Judge Mahoney, emphasised that states were free to choose the means whereby they fulfil their obligation to “abide by” the Grand Chamber’s judgment in relation to Article 3. The Court of Appeal’s decision in McLoughlin leaves the position unclear, because the Court of Appeal appears to have held that the existing law permits release on other than compassionate grounds, contrary to the statute and to the finding of the European Court of Human Rights in Vinter. Whatever the Supreme Court may or may not do with McLoughlin, it is, I suggest, now for us in Parliament to make it clear what the law is in this crucial area and to do so in a way that unequivocally honours our treaty commitments.

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Moved by

[Lord Marks of Henley-on-Thames]

9: Clause 6, page 5, line 35, leave out subsection (3)

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[Lord Marks of Henley-on-Thames]

My Lords, the purpose of this amendment is quite simply to remove the power proposed in the Bill by Clause 6(3) to provide that the power to impose an electronic monitoring condition be mandatory. Amendment 14, which is also tabled in my name, is consequential upon Amendment 9.

The Committee will no doubt quite understand that the effect of subsection (2) is to amplify and explain the Secretary of State’s power to impose an electronic monitoring condition on the release on licence of prisoners. That is a desirable and sensible condition to be imposed where appropriate. The idea that by subsection (3) a new Section 62A is added to the Criminal Justice and Court Services Act 2000 giving the Secretary of State power by order to make it compulsory to impose an electronic monitoring condition evades explanation, I regret to say. The power under Section 62 already gives the Secretary of State power to make rules about the conditions for the imposition of such a condition. I simply invite the Minister to explain why the fetter on the Secretary of State’s future discretion is needed.

There may be cases where an electronic monitoring condition is not required or is inappropriate. I take as an obvious example the case of a prisoner who is disabled or is to be hospitalised on release. That is recognised in Section 62 as it stands. Making an electronic monitoring condition compulsory seems a retrograde step depriving a Secretary of State who brings it in by order and any future Secretary of State of the power or the right to exercise discretion not to make such a condition in appropriate cases. The amendment is a simple one, and the issue is a simple one. I beg to move.

[The Deputy Chairman of Committees (Baroness Harris of Richmond) (LD)]

My Lords, if Amendment 9 is agreed to, I cannot call Amendments 10 to 12 inclusive by reason of pre-emption.

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[Lord Ahmad of Wimbledon]

Of course I will take advice on this, but as I have said already—and the noble Lord knows this as well as I do—representations are made in any form of government. I will of course endeavour to write to the noble Baroness. I will share with the Committee the details of that letter and place a copy in the Library.

[Lord Marks of Henley-on-Thames]

My Lords, a great deal of what my noble friend has said in response to these amendments is entirely uncontentious. As I hope I have made clear, I have no objection to discretionary electronic monitoring of prisoners on licence, and no objection to improved tracking, technical improvements or effectiveness. I quite understand everything he said in that score.

My concern was with the element of compulsion added by new subsection (3). I regret that I simply did not understand my noble friend’s response on its drafting. He said that there was somehow a discretion in the order-making power under new subsection (3) that would enable the Secretary of State to take into account cases where it would be difficult, inappropriate or not sensible to impose electronic monitoring. It may be that we are talking about a matter of drafting. In that case, I urge my noble friends to look at the drafting.

New Section 62A provides:

“The Secretary of State may by order provide that the power under section 62 to impose an electronic monitoring condition must be exercised”.

The description of the order-making power states:

“An order under this section”—

which is an order that the monitoring condition power “must be exercised”—

“may … require an electronic monitoring condition to be included for so long as the person’s release is required to be, or may be, subject to conditions or for a shorter period”,

and may,

“make provision generally or in relation to a case described in the order”.

It may be that my noble friend is referring to the entitlement to make provision generally as imposing a discretion. If he is saying that, I would suggest that that no longer complies with the description under new subsection (1) of an order imposing “an electronic monitoring condition” which “must be exercised”. Furthermore, even if he were right that that would somehow allow electronic monitoring conditions not to be mandatory, I would respectfully suggest to him that that is a clunky way of providing for particular cases to be dealt with in accordance with the discretion, which is what I suggest ought to be maintained. However, on the basis that my noble friend will consider the drafting, I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

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[Lord Ramsbotham]

My Lords, in supporting my noble and learned friend Lord Brown and saluting my noble and learned friend Lord Lloyd on his determined and tenacious momentum on this issue, I want to say just one thing. I am amazed that the Government are not tabling this amendment. As the noble Lord, Lord Wigley, mentioned, £40,000 a year for 773 prisoners is £35 million per year. If you have an overstretched and underresourced Prison Service, surely it makes sense to examine where you could make savings to put the money to better effect, rather than spend it on prisoners who should not be there. I fail to understand why, in the face of all the arguments, all the legal statements and all the evidence, plus the legislation passed in 2012, the Government have not taken the common-sense step of approaching this forcefully themselves.

[Lord Marks of Henley-on-Thames]

My Lords, I join other noble Lords in paying tribute to the noble and learned Lord, Lord Lloyd of Berwick, for his campaign to achieve justice for IPP prisoners. I remember well the debate on 27 March secured by the noble Lord, Lord Wigley, who raised this issue on that occasion.

The continued imprisonment of those who are serving tariff sentences of less than two years for so long after those tariff sentences were completed, and now long after IPP sentences were abolished by the LASPO Act, is nothing short of disgraceful. The noble and learned Lord, Lord Phillips of Worth Matravers, mentioned “Fidelio”. In that opera, it took the courage of Florestan’s wife Leonore, who, dressed as Fidelio, risked her life to save her husband from unjust imprisonment, to secure his release. All that is necessary for this Government now is for the Secretary of State to exercise his power—given to him, as has been pointed out, by the second limb of Section 128 of the LASPO Act—to introduce a simple presumption in favour of release unless the continued imprisonment of any such prisoner on an IPP can be positively and clearly justified. It is a simple presumption. It meets the justice of the case. It answers any need that remains for the protection of the public. I suggest that this unfairness must be ended, and now.

[Lord Beecham]

My Lords, it is ironic that the Committee meets today, on Bastille Day, as the French Revolution effectively broke out with the release of a number of prisoners on what were presumably indeterminate sentences. I suppose that they might have been lettres de cachet. The House and the Committee are indebted to the noble and learned Lord, Lord Lloyd, who has constantly raised this matter.

The noble and learned Lord, Lord Phillips, referred to “Fidelio”. I am not sure whether the Secretary of State would find himself comfortable in the position of the Minister in that opera; perhaps he would be more comfortable in another opera as Gilbert and Sullivan’s Lord High Executioner. Be that as it may, the noble and learned Lord raised a series of questions, implicitly or explicitly, to which we have had no reply thus far. I hope that the Minister will be able to give us some indication of the Government’s thinking, if they have got that far, on the issues raised this afternoon.

The first question has already been asked but I will repeat it: why include a provision in legislation and then completely ignore it? Have the Government or, more particularly, the Secretary of State considered using the provision that this Government included in the LASPO Act? If they have, on what basis has that consideration taken place? Has the Secretary of State looked at any cases of the kind to which the noble and learned Lord referred—I would hardly expect him to look at them all—to come to a view about whether it would be right to exercise the discretion that was deliberately placed in his hands? If he has not, why not? What is the Government’s intention in relation to this section of LASPO? Is it to be ignored or is it at all to be used? If it is not to be used, why do the Government not have the courage of their apparent convictions and delete it? If it is to be used, when and under what circumstances will that be?

Questions have repeatedly been asked today about the resources available to the Parole Board to deal with matters of this kind. I asked the general question before to which others, including the noble Lord, Lord Wigley, have now alluded about the increased burden on the Parole Board as a result of recent decisions and the growing number of cases that it will be asked to look at in oral hearings. However, has any specific consideration been given to the resources required to deal with the cases of people who have been in prison for the length of time to which noble Lords have referred? Again, if not, why not?

There may be a concern in respect of some of these defendants as to what would happen if they were released and whether they might to some degree be a risk to the public. What investigations have been carried out to assess the need for investigation and inquiry by the Parole Board in support of those potential candidates for release who have served such a length of time? The overriding question is really therefore: what was the purpose of incorporating the Secretary of State’s discretion in the 2012 Act if it is to be treated as redundant? If it is not to be so treated and there is an intention to do it at some time, why the delay? As we have heard, many cases have been running for an unacceptable length of time. I hope that the Minister will be able to give some assurances that this matter will be seriously addressed and not simply left on the shelf in a way that does no credit to our system.

I think that the previous Government were rightly criticised on matters of this sort, in many respects, particularly in also failing to provide sufficient support for the Parole Board. However, their failure is relatively minimal compared to the looming failure which is likely to affect not only this category of prisoner but others who require the Parole Board’s intervention. I hope that the Minister can indicate, today of all days, that some movement will be made and that the Secretary of State will address himself to the plight of these people, and thereby avoid a further stain on the reputation of the Government in this respect.