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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This amendment, which the JCHR recommended, respects the statutes permitting whole life orders, and requires service of at least 25 years before a review can be conducted. By the requirement for,
“such exceptional progress towards rehabilitation that a whole life order is no longer justified”,
it puts a heavy onus on the Parole Board before the board can act. The limit on reapplications ensures that the Parole Board will not be faced with a series of unmeritorious repeat applications. However, in setting out a clear framework in law for review and possible release, based firmly on rehabilitation, the amendment complies precisely with what the Grand Chamber held was necessary to comply with the convention, while exercising the latitude allowed to the United Kingdom by the court as to how to implement it.
My final point is a general one, which is frequently made in debates on human rights and other subjects in this House. The UK has a creditable record in the field of human rights and on the rule of law—one that was stressed in the excellent debate that we had in this House at the instigation of the noble and learned Lord, Lord Woolf, last Thursday. It is a record built on centuries of development of the common law. However, it is simply incompatible with respect for the rule of law for us to fail to comply with international treaty obligations, and that means proper and full compliance with decisions of the European Court of Human Rights. Flouting those decisions, based on whether we like them or not, seriously besmirches our reputation. We cannot expect our record to continue to command international respect if our present behaviour suggests that our Government do not respect decisions by which this country is bound. Nor can we expect others to respect the rule of international law if we seek to pick and choose between outcomes we like and outcomes we dislike.