My Lords, the amendment was proposed by the Joint Committee on Human Rights, of which I am a member, in a report published on 14 May and is in the Printed Paper Office. I mention that because I realise that what I am about to say will certainly be intelligible to the distinguished jurists who are present, but ordinary members of the public might be a little puzzled by some of it. I shall do my best to make it straightforward. I am delighted that my friends, noble and learned and otherwise, are supporting the amendment.
In the case called Vinter v United Kingdom, the Grand Chamber of the European Court of Human Rights decided that for life sentences to remain compatible with Article 3 of the European Convention on Human Rights there had to be a possibility of release and a possibility of review, both in theory and in practice.
Currently, under Section 30 of the Crime (Sentences) Act 1997, prisoners on a whole life order cannot be released except with the discretion of the Secretary of State for Justice on compassionate grounds. The Strasbourg court held that this did not offer sufficient legal certainty. In the recent case of McLoughlin and Newell on sentencing appeals which was decided on 18 February 2014, the Court of Appeal held that the current regime under Section 30 is compatible with Article 3 of the convention because the Secretary of State is not restricted to the medical grounds set out in the Prison Service order, but is under a public law duty to take into account all exceptional circumstances.
The Joint Committee on Human Rights, as I have mentioned, published its report on 14 May. It commended the usefulness of the Government’s European Convention on Human Rights memorandum, which is fully in accordance with our recommendations for best practice by government departments. As the memorandum rightly acknowledges, the fact that the provisions in the Bill bring some terrorist-related offences within the scope of possible whole life orders for the first time directly raises a human rights compatibility issue as to whether the law currently provides sufficient opportunity for a review of a whole life order in the light of the judgment of the Grand Chamber in Vinter, and the position of the Court of Appeal in McLoughlin.
In paragraph 1.23, our report says:
“There is some continuing legal uncertainty, however, as to whether the domestic law, as interpreted by the Court of Appeal, now provides an adequate mechanism for review of whole life prison orders. The Grand Chamber in Vinter was unequivocal that ‘a whole life prisoner is entitled to know, at the outset of his
sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought’.
The judgment is clear that the procedure for such a review mechanism should be set out clearly in law so that prisoners subject to a whole life order clearly know, at the outset of their sentence, the process by which they may or may not be eligible to apply for a review of their whole life order should they wish to challenge it on the grounds that there are no longer justifiable penological grounds for their continued life detention, including the time when they can expect to be able to make such an application for a review.
In our view, while the Court of Appeal's judgment in McLoughlin significantly clarifies the law, it does not provide legal certainty about these three important aspects of the review mechanism”.
When we asked the Government,
“whether any further measures are required in order to provide the requisite degree of legal certainty”,
they responded, indicated that they were awaiting the outcome of appeal to the Supreme Court arising from one of the appellants in the McLoughlin case. The JCHR said that,
“for the review mechanism to be sufficiently certain, more specific details need to be provided … including the timetable on which such a review can be sought, the grounds on which it can be sought, who should conduct such a review, and the periodic availability of further such reviews after the first review”.
The Bill provides Parliament with an opportunity to remove any legal uncertainty by specifying the details of the review mechanism. That is what the amendment is designed to achieve. That is even more necessary than it was at the time of the JCHR report because of the inclusion by the Government of Clause 24, which makes a whole life order the usual term of imprisonment for murder of a police officer or prison officer and which may result in more whole life orders being imposed.
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Also, the European court’s judgment in László Magyar v Hungary, decided on 20 May 2014, reinforces the reasoning in the JCHR report. In that case, the European court reiterated that a whole life prisoner is entitled to know at the outset of his sentence what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought.
Our Government submitted a revised action report to the Committee of Ministers of the Council of Europe on 27 June 2014. As Members of the Committee will know, that is the body charged with securing compliance with court judgments in a supervisory capacity. In the Government’s report to the Committee of Ministers, they asked for supervision of the Vinter case to be closed on the basis that all is now clear as a matter of domestic law after the Court of Appeal’s judgment in McLoughlin.
The view of the Joint Committee on Human Rights—and, if I may say so, my view—is that that is incorrect, and the briefings from the Equality and Human Rights Commission and Justice both support the amendment. I very much hope that in his reply the Minister will be able to respond positively, because it is extremely important that the matter be understood clearly here, as well as in Strasbourg. I beg to move.