I beg to move, That the Clause be read a Second time.

The Bill provides only for the abolition of the death penalty for all cases of murder. Throughout the whole course of the proceedings, the promoter seems never to have approached the problem of how the new situation which will then arise ought to be dealt with. He has simply left a blank that nobody is to be hanged, but the very difficult problem which is causing the public a great deal of anxiety is how the 190 murderers who are convicted each year are to be dealt with.

The Home Secretary has appreciated the problem. His solution is to reserve to himself, acting on the advice of his civil servants, the power to deal with the reality of sentences secretly, and on a secret equity, by administrative action. I do not think that it matters what he himself has said as to the way in which he would approach the problem of releases. It has caused a great deal of anxiety to many people that the Home Secretary thinks that nine years is the maximum sentence for a murderer, unless there are exceptional cases and it is obviously unsafe to release a man.

This is a principle which goes far beyond the views of individual Home Secretaries and is a question which arises between the Executive and the judiciary, whether it is right that upon one view, if the Bill is amended in a particular way, the judiciary will pass a purely nominal sentence and the reality of the sentence will thereafter be wholly and exclusively in the hands of the Executive—the Home Secretary in England and the Secretary of State in Scotland.

In both England and Scotland, if that is to be the position, the exercise of that discretion will be greatly influenced by the views and approach of the civil servant who will be responsible for advising either Secretary of State, who will be responsible for summarising the evidence, making out a minute, analysing what has happened up to then, and making a recommendation, which no doubt his superiors may add to or not, which will then be laid on the desk of a very busy Minister amongst a large number of other administrative decisions and political business with which he will then be concerned.

I and my right hon. and hon. Friends think that it is wholly objectionable that for one type of crime only—and that the most important, namely, murder—the judiciary should pass a nominal sentence, or a sentence which has little meaning, and that thereafter the effect and operation of that sentence should be wholly in the control of civil servants and the Minister whom they advise. The liberty of the subject has always been the concern of the judiciary, and it should always be so. The judiciary are also particularly concerned with the difficult problem of the deterrent effect of sentences, how far they prevent crime, and with balancing the length of sentences and their deterrent effect against the individual convicted man, the citizen whose liberty is at stake.

11.15 a.m.

We hope that this scheme will be approached by abolitionists and by retentionists, all those who have supported the Bill and others, on the basis that it sets out to tackle rationally a situation in which no murderer hereafter is to suffer the capital sentence. We hope also that it may provide a pattern for a review of sentences which might well be applied to crimes other than that of murder which carry very long sentences, because there is anxiety in the country about how those who are sentenced to lengthy terms of imprisonment should be dealt with. Although we can for the purposes of this Bill discuss a review procedure for the purposes of murderers only, if it is soundly based, sensible and rational, and if it operates well, we who support the Clause would hope to see it at a later stage extended to deal with the review of all long sentences.

This is, in a sense, a Second Reading debate of this scheme. Unfortunately, although an Amendment somewhat along these lines was tabled in Committee, it could not be discussed, because of the way the proceedings went in Committee. The word "life" was deleted. No proper sentence was put in. Therefore, the Chairman of Ways and Means ruled that, as there was no sentence, it was impossible to have a review procedure of a sentence which was not provided for. For this reason, we have not up to now in the case of these proceedings had any opportunity to consider whether there should be any scheme for reviewing sentences in the case of murder and, if so, what that scheme should be. Therefore, at this very late stage it is perhaps unfortunate that we have to embark for the first time upon this proposal.

New Clause No. 1 and new Clause No. 2 are alternative. New Clause No. 1 is designed to deal with a situation in which the word "life" is put into the hole which is at present in the Bill. The judiciary would be bound in every case of a man convicted of murder to pronounce the words, "You will go to prison for life" and do no more. The Home Secretary already in such circumstances has a power of release under the Prison Act, 1952. The Secretary of State for Scotland has similar powers under the Prisons (Scotland) Act, 1952. New Clause No. 1, therefore, would operate in the case of all murderers subject to such a sentence and would place a restriction on the exercise of the discretion by the Home Secretary by making him receive and consider the advice of the Judicial Review Tribunal before he released anybody upon licence under those powers.

New Clause No. 2 is intended to do two things. First, it is designed to deal with the situation in which a discretion is left to the judiciary as to whether they should pass a sentence of life imprisonment upon a convicted murderer, or whether they should be able to pass a determinate sentence of a number of years, be it long or short. If such a power is given to the judiciary, as I hope that it will be, they might very well pass a sentence of five or six years, or they might pass a sentence of 25 years or 30 years, or any term of years.

The Home Secretary in such circumstances, under the law as it now stands, would not have any statutory power to release before the expiration of the sentence. Subsections (1) and (2) of this new Clause are in precisely the same words as provisions in the Prison Act, 1952, and are intended to give the Secretary of State the power to release on licence a convicted murderer who has been sentenced to a determinate term, to recall him and, after recall, to allow him to go out on licence again. Subsections (1) and (2) merely confer upon the Secretary of State the same power that he now has to deal with a person sentenced to life imprisonment. They would enable him to release a murderer sentenced to a determinate term, of whatever length, subject to the same conditions.

Subsection (3) of new Clause No. 2 is designed to provide that if somebody is under a determinate sentence and is released on licence, when his sentence would have expired his licence must expire too. I think that is sensible. Subsections (4) and (5) are precisely the same as subsections (1) and (2) of new Clause No. 1. In other words, they provide that when a convicted murderer is to be released on licence the Secretary of State in Scotland or the Home Secretary in England must consult the Judicial Review Tribunal and consider its recommendations before he himself exercises his discretion.

Since we do not know what will go into the hole that now exists in the Bill, I recommend that my hon. Friends should vote on new Clause No. 2 and that we should not take a vote on new Clause No. 1. This will mean that we shall leave open for decision as to what goes into the hole all the arguments as to whether determinate sentences subject to review are or are not desirable; whereas, if we vote on new Clause No. 1, when we come to discuss what shall go into the hole the promoter will say that in the case of a determinate sentence it will never be possible to release on licence. That is a situation that I do not particularly want to see. I think that the release on licence system should apply to both cases.

For that reason, I recommend my hon. Friends to vote on new Clause No. 2 and not on the first new Clause. and if "life" should go in to fill the gap we or Members in another place can decide whether to delete subsections (1), (2) and (3) or the whole lot if it is felt desirable. Since we do not know what is going in to fill the gap, I am in the embarrassing position of saying that it depends on what is put into the hole. Therefore, it is safer to vote on the second new Clause.

The principles lying behind this proposal for a judicial review tribunal are as follows. First, the final discretion remains with the Secretary of State. It will be seen that there is no shackle upon the way in which the Home Secretary or the Secretary of State for Scotland can exercise discretion to release on licence. Each of them will be the final arbiter to do whatever they think right and fair in deciding to release a convicted murderer on licence. But we think that either of those two Secretaries of State would be greatly assisted by, and we hope would welcome, an independent review of the whole position and of all the facts and factors such as expert medical evidence and the reports from prison officers and prison governors, and that there should be such an investigation, not in the sense of a trial or retrial of the original case, but in the sense of an advisory review by people who are particularly concerned and experienced in dealing with crime, sentencing, ascertaining facts and in balancing the need for deterrence and the safety of the public against the liberty of the individual. The judiciary is always concerned with the liberty of the individual. It ought to be associated and concerned with it, and should continue to be so concerned if we are to have a system of release upon licence.

These difficult questions of release upon licence will affect a body of persons who will be entering the prisons at a rate of about 190 per year if the present rate of convictions for murder continues. Perhaps it will be slightly reduced, because although I have added in the Section 2 manslaughter cases, many of them will be subject to life imprisonment as well. Therefore, we shall be considering the liberty of a substantial number of people, and the proper way of dealing with them is of vital importance not only to the administration of justice and the safety of the State but, above all, to the rights and liberties of individual convicted murderers.

When my right hon. and learned Friend refers to 190 people, 187 of them would be entering prison under the present legislation. There is no new principle there.

That is so. I concede that point. I think that in 1957 people did not realise the problem that would arise from the numbers of people who would be committed to prison simply for life and how important would be the exercise of the discretion of the Secretary of State. I think that may well have been overlooked and not discussed at that stage. I recognise that it is because of the experience between 1957 and the present day that this problem has come to the fore, and that many people feel so many anxieties about the way in which the arrangement is working.

No doubt the two Secretaries of State are under pressure from their civil servants to keep the whole process administrative, as it were, under their own hat, and not to be troubled by an outside body which would give them independent advice. But we think that difficult questions of fact, of medical opinion, crime prevention, deterrence and social and individual justice arise in each of these different cases, and that they are matters upon which in particular the advice of the judges would be most useful to any Secretary of State.

A review by an independent body, even if it is not constituted as suggested, would really give the benefit of protection to any Secretary of State who has to deal with these difficult questions. It would be infinitely preferable for each of the Secretaries of State to have such help and advice rather than having the views and notes of busy, overworked and hard-pressed civil servants whose chief anxiety must be to prevent their Ministers from getting involved in a public or Parliamentary row.

The judiciary can take a bolder line in many cases, and if the decision does turn out, unhappily, to be wrong—if it should occur that a man who has been released from licence commits a further murder—the Secretary of State who released him will be protected against public and Parliamentary attacks for the way in which he exercised his discretion if he is able to say, "The judicial review tribunal, on all the evidence it then had, thought that this was a sensible case in which to grant a release and I accepted that view because I had no grounds for disagreeing with it."

The Home Secretary has said that he regards it as adequate and sufficient if he obtains the views of the trial judge before he decides to make a release, and that he will communicate with the trial judge and ask for his views on each occasion before he exercises his powers to release on licence. But I regard this as wholly inadequate. The trial judge may be not available, or dead. He will almost certainly have no vivid recollection of the case at all. He will know nothing at all except the facts proved before him in evidence at the trial. If he has passed an automatic life sentence he will not even have had the opportunity of hearing a submission in mitigation on behalf of the accused man. He will have been told nothing except the facts which are relevant to the issue of guilt.

The judge will not have been told the criminal record, the family background or work record or anything to do with the accused man. He will have no in- formation at all as to what the situation was at the moment when release was being considered. He will know nothing about the prospects of employment or any of the other factors that are so important when one is considering a release. All he can do is to repeat what is in the note which he will have sent to the Home Secretary in any event immediately after the trial.

I think that at present judges write to the Home Secretary immediately after the trial and they then indicate their view as to whether it is a serious case or a not-so-serious case or an average case. He could not add anything, 5, 10 or 15 years later, that would be of the slightest use, because the seriousness of the crime would be obvious to all. He would have expressed his opinion at the time of the trial, and would have done so without a mitigation or without the slightest knowledge of the really important factors affecting the particular accused.

11.30 a.m.

All the assimilation of a crime, how it was committed; all the facts about the accused—his history, his record, his family, home life, work record, criminal record, his behaviour in prison—become relevant when considering the question of release, and should be looked at at the time when release is being considered, however long after the offence, and they should be looked at by a not overworked body that is used to considering and balancing evidence and facts that have been fully investigated, and can then make a recommendation to one or other of the two Secretaries of State, who retains the ultimate decision as to when or how he should exercise his discretion.

The Clause provides that the Secretary of State can refer a sentence to the judicial review tribunal at any time. It has been said that where determinate sentences are passed it would be absurd if a judge passed a sentence of, say, five years and within two years the Secretary of State referred the matter to the tribunal. That may be so. On the other hand, there are very exceptional cases in which new factors may arise, and new circumstances not available to the judge at the trial may arise, so I think it very much better that the timing of references to the Judicial Review Tribunal should be entirely within the discretion of the Secretary of State, who may be relied on not to do it too quickly. He will obviously prevent over-frequent and unnecessary applications.

The sort of time factor might be the end of half a determinate sentence, or at the end of six or seven years, and after each subsequent three years, but to lay down time factors in the Statute would become very inhibiting in exceptional cases. No doubt the Secretaries of State can be relied on to make the references at sensible intervals as and when it becomes necessary, and would then have the power to make references in exceptional cases even within quite a short period.

We think that it is a very important principle, a very important idea, to have such a Judicial Review Tribunal to deal, in the first case, with sentences on all murderers, and subsequently to be adopted for use in cases of all long sentences for crime of any sort.

The third Clause deals only with machinery. We may or may not debate it, but I should say a word about it. It proceeds on the basis that the consideration by the Judicial Review Tribunal would not be a trial of the issue but simply a review of all the circumstances. The Home Secretary would, we hope, send to the tribunal all the prison and medical reports, the history and record of the accused, and the account of the trial. If he disclosed all such confidential information to the tribunal, it would be required to sit in private. It would be very inhibiting, indeed, for so much confidential information to be made public. It is, therefore, provided that the tribunal should sit in private.

It is provided that the accused can make representations, and if life is to be the only sentence this may be the only sentence this may be the only occasion when the accused can put forward a plea in mitigation. He can put forward medical reports and any other reports to the tribunal. It is provided that the tribunal can ask the Home Secretary for any additional information it may require—as, for instance, about the prospects of the man if he is released, where he could live, the condition of his family and home at that moment, the prospect of employment, and all other matters that the tribunal would no doubt wish to take into consideration.

I have hesitated a good deal over whether this tribunal ought not to sit in public, but when on remembers—not the great storm, but the storm over a judge of the Chancery Division committing a man to prison for a few weeks without it being publicly known, one is surprised how the power of the Home Secretary to retain a man in prison for years without anyone knowing about it is never commented on at all. To that extent I should have thought that the arguments were in favour of making public such hearings by the tribunal but, on balance, it is impossible; first, because of the confidential reports it would be considering, and, secondly, above all, because it would be grossly unfair to the accused man to have the glare of publicity drawn back to him with the knowledge that he is about to be released published throughout the land, and certainly to the knowledge of those who knew his offences—

Has the right hon. and learned Gentleman envisaged the possibility that under his proposals there would be an extreme danger of creating a conflict between the Home Office, on the one side, and the courts, on the other, without the public—since the tribunal would sit in secret—having any information whatever that would enable it to decide which side was right?

No. With respect, it is not the courts. This is not intended to be a court, but three judges. I am content, as I have said, if we want to set up a different body and put lay people on it, that two or more persons with certain qualifications, or just generally intelligent citizens, should be added. This would be an advisory body, and quite different from a court. It would be there just to give advice, and the fact that advice is given but not accepted frequently occurs with Ministers.

The Secretary of State would remain responsible to Parliament for his decision and could, as he pleased, disclose that he had acted in accordance with the advice he got, or to take the whole responsibility himself. The idea that we shall embark on a conflict between the courts and the Executive without public knowledge is quite wrong. This would not be a court, but simply a body of three people specially experienced in these problems who would be asked to advise the Home Secretary, as frequently happens now, apart from questions of crime and the judiciary.

The only other matter is the composition of the Judicial Review Tribunal, which is laid down in the fourth new Clause. I need not dilate on that. I see that the hon. Member for Watford (Mr. Raphael Tuck), in an Amendment that has not been selected, wanted the Lord Chancellor and the Secretary of State to deal with each and all of these releases, but I think that those persons are sufficiently overworked without having this additional burden put upon them. But at least it is evidence that the hon. Gentleman seemed to think that some representatives of the High Court and people in the position of the Lord Chancellor should give independent advice to the Home Secretary. I therefore hope that the hon. Gentleman will support these present proposals.

The right hon. and learned Gentleman has given a list of the considerations that would go before such a tribunal. Does he not think that judges of the High Court alone could possibly have no knowledge of criminology or penology, and might well be assisted by people with such knowledge?

As I say, it is always difficult to know whether one wants independent people with experience of listening to evidence, who can hear evidence from criminologists or penologists, or whether we should have criminologists or penologists as part of the tribunal.

I am not wedded to the idea of three judges alone. I am quite prepared to see additions made, and to have an advisory body of, say, five. I am very interested to hear the views of the House on this question, which is an important one. We will all benefit by discussing it. I put forward the proposal, but I am not wedded to it. If anyone wanted to add to the number, I would not oppose that if I were convinced by the argument put forward.

It is in this spirit that I make what I hope will be a helpful proposal—helpful to the Secretaries of State in England and Scotland and helpful to the House on the difficult problem of what we do now that the Bill, as it stands and will leave this House, will not contain provision for capital punishment for any murderer. The question of release then becomes one of the most vitally important, a question in which the public are deeply interested and in which the interests of the State and of the individual convicted murderer have to be balanced on each occasion when the case is considered.

In these circumstances, I hope that the House will agree that it is right that we should embark on a scheme which will enable the Secretary of State to have the help and advice of high-powered advisory bodies before he exercises the very difficult and weighty discretion which will remain with him hereafter.

The right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) has developed fully again today the basic proposition which we have discussed on a number of occasions during our consideration of the Bill. I hope that he will not mind if I make one or two references to his speech.

He knows that I am proud to have him as a member of the chambers to which I once belonged and the very high regard in which I hold him. This emboldens me to say that I have some slight sense of regret at some of the expressions which he used in moving his new Clause. To talk of something done in secrecy affecting the liberty of the individual was, I thought, a little unfortunate. It was, perhaps, more unfortunate when I bear in mind that in his own new Clause he proposes that the deliberations of the tribunal should be equally secret.

This has been done for decades. For generations, the Home Secretary has, in secret, if that is the appropriate expression, decided whether or not in the case of an individual he should recommend to the Sovereign that the Sovereign should exercise the Royal Prerogative of Mercy. That is deeply ingrained in our constitutional proceedings. It is secret in the sense that nobody other than the Home Secretary and his advisers knows what is placed before him when he is asked to make up his mind as to whether he will make a recommendation. That is secret. If there is anything sinister in that, it is something which has blotted our constitutional arrangements for centuries, something which has been accepted by universal consent as appropriate.

There is nothing more secret about the decision of the Home Secretary under Section 27 of the Prison Act, 1952, than there is in the case of the exercise of the Royal Prerogative. After all, what we are discussing is Section 27. The secrecy was put into a Statute passed in 1952 which has remained on the Statute Book without criticism, as far as I know, and without protest by anybody on the basis that there was anything sinister or secret about the exercise of that discretion. This has been the situation for 13 years. I do not see why it should now become wrong since hitherto it has been universally accepted as wholly appropriate.

I therefore hope the right hon. and learned Member will not think that I am being unduly critical of his observations when I say that I regret that he used the word "secret" in the context in which he used it. It is not secret any more than any other decision by any other Minister is secret. Decisions have to be secret in the sense that in many respects the reasons are not known to the public at large throughout the whole of our administrative and executive system. We are here dealing with something which, I should have thought, turned particularly on considerations which should not be broadcast to the public.

11.45 a.m.

Whether a man's mental make-up has so improved owing to the period during which he has been in detention that he can be safely let out is typically the sort of question which requires private consideration. It would do the greatest harm to him and to those concerned for him that reports should be blazoned to members of the public for consideration and analysis of his mental state. That sort of thing must be secret and should remain secret, and the right hon. and learned Gentleman is perfectly right in proposing in his new Clause to retain secrecy for the proceedings of the judicial tribunal which he suggests. I hope he will think that that element of the matter should be wholly eliminated.

Equally, I regretted the phrase which he used when he implied that the Home Secretary wanted, if I may borrow his words, to consider something "under his hat" or that his advisers would resent the intrusion of an outside body. I can assure him that, so far as I have any knowledge of my own psychology, I have not the slightest desire to keep anything under my hat, nor, so far as I know, have had any of my predecessors. I am sure that my advisers would not resent the intrusion of an outside body if they though that it conduced to the public good. It is not a question of outside bodies intruding. The question is, how should we so arrange our decisions on these matters as best to serve the public good?

What is the best way of doing that? At the moment, the Home Secretary has the full information placed before him. The right hon. and learned Gentleman implies that he may be an overworked Minister. If his decisions are hasty, the same fate should overtake him which overtakes any other Minister who does not give proper consideration to the formulation of an important decision: he loses confidence and should go. This is our Parliamentary system. If his decisions are open to criticism on the ground that they have been ill-considered and he has not thoroughly sifted the material before him or provided himself with the necessary material, Parliament rightly criticises him and he must go. That is the answer which we have always rightly given to that sort of situation.

That being so, is the Home Secretary likely to be any better served if he has the assistance of a judicial tribunal to look at precisely the same information that he has? That is the question before us. I can tell the right hon. and learned Gentleman that before I come to a decision I have full reports on the individual in question. If I am not satisfied, I ask for further reports. If I am not convinced, I do not act on them. I do not claim any particular prescience in matters of this sort. I can assure the right hon. and learned Member that full consideration is given to each and every case. The moment that it is not given will be the time when I should go.

I can assure the right hon. and learned Gentleman that my advisers place before me everything that I could possibly want to enable me to come to a decision. If I think that they have not done so, I do not hesitate for a second to ask for further information, which comes, not from inside the Department, but from the doctors and the prison governor—the people who have charge of the individual and who have known him for years. They have observed him in prison, and they have observed his reactions to detention. They are in a position to judge and to advise me as to what the probable course of his conduct would be if he were set at liberty, or partially set at liberty subject to my right to recall him. They do not give these decisions hurriedly. They have years of experience on which to base them. Generally speaking, their advice is of the utmost help and value to me when I have to make a decision.

It is not the case that this is a kind of secret conclusion hatched out from the recesses of the Home Office, not assisted by any outside advice and hastily reached by an overworked Minister who does not give the matter proper consideration. Language which the right hon. and learned Gentleman used more than once in his speech seemed to me—and I am sure that this was not intentional on his part—to convey the impression that that was the situation. What he said was miles from what really happens. These cases are most carefully considered on the basis of every conceivable source and type of information which the Home Secretary and his advisers may think relevant in coming to a conclusion.

I therefore cannot for the life of me think what assistance would be gained by having the advice of an outside judicial tribunal. I picture to myself how it would work. If assistance should be given to the Home Secretary, rather than have something which, as I read the new Clause, would approximate to a judicial hearing, it would be far better to have the members of the Tribunal which the right hon. and learned Gentleman proposes sitting in the same room as the Home Secretary and having purely informal conversations round the table with him, able to say that they are not satisfied or convinced by a particular phrase in a report which may seem to them to be ambiguous and which wants further amplification. That is by far the best way to arrive at a reliable conclusion, in so far as conclusions which can be made are completely reliable, on matters of this sort. One needs that kind of informal consideration round a table by people who can say that they are not satisfied with the information before them, feel doubtful about it and wish it to be amplified, and send for further reports in case of need.

The right hon. and learned Gentleman said that nine years' imprisonment was the maximum. I would ask him to consider whether that was a justifiable use of language. I have said over and over again, and I repeat, that nine years is not the maximum. It never has been. What I have said is that one begins to get anxious whether the personality of the prisoner may begin to show signs of deterioration at round about the period of nine years' incarceration. That is the relevance of the nine years. But I have said over and over again, and I repeat most emphatically, that if I think that public safety cannot be secured if a prisoner is let out after nine years, I most certainly will not let him out after nine years.

I have before now coupled that statement with the further observation that as a matter of humanity I feel greatly reluctant to keep people longer than 9, 10, 11 or 12 years because humanity requires that one should not keep them in circumstances which may impose a severe strain on them. I say that again. But I repeat that in cases where people must serve imprisonment for the rest of their life, they will do so. I hope those cases will be few and far between, and I would most reluctantly come to the conclusion that there was ever a case of that sort.

The right hon. and learned Gentleman says that there should be consultation with the judiciary. In a sense I agree. That is precisely why when I spoke previously, on Second Reading and subsequently in our consideration of the Bill, I have said that I will take steps to try to consult the trial judge. What I would have thought was relevant and a circumstance which a Home Secretary or anybody else reviewing the matter would wish to take into account is what the trial judge felt, having the man before him, as to the quality of his offence. One can read on a shorthand note nine or ten years later what the evidence disclosed, but it occurs to me that the trial judge, having the man actually before him for two, three, four or five days, may have been able to form an impression of any specially vicious feature in the nature of the crime which does not appear clearly on the shorthand note.

That was why I said that I would adopt the practice, which has been adopted, as I pointed out, hitherto in the exercise of the Royal Prerogative of Mercy, of seeking consultation on these lines. Where the trial judge is available, I would seek from him an expression of opinion as to whether there was any special characteristic in the nature of the offence which I ought specially to bear in mind. I pointed out that as, unhappily, years later the trial judge may no longer be alive or available, I would hope that I would get a memorandum from him calling my attention to any particular feature making the crime a particularly serious or vicious one which occurred to him while he was trying the offence. That is the sort of consultation that I should have thought was useful and necessary. There may have been something which does not appear in black and white on the shorthand note, perhaps a matter of impression which the trial judge, with his experience, may gain having the man before him.

It is that sort of knowledge which I wish to have in forming my own judgment many years after the offence was committed. That sort of information I will seek to obtain, as has hitherto been the custom in the case of the exercise of the Royal Prerogative of Mercy. But the interposition of a judicial tribunal which will look at the same documents as the Home Secretary looks at and which will do that away from him, not being able to exchange ideas with him in conversation round a table, does not really seem to me to improve the situation in the least. These things must be a matter of estimate and judgment. I would hope that the right hon. and learned Gentleman—we have discussed this aspect so many times—would now concede—

I do not think that we have ever discussed this in the course of our proceedings on the Bill. We have discussed the question of sentencing at the time, but we have never had this Amendment before us or anything to do with it.

We have discussed the broad principle on a number of occasions as to whether it is satisfactory that the decision to release a man on life sentence should be left to the unaided judgment of the Home Secretary. I thought that that was instinctive and underlying in a number of the considerations which have been advanced from both sides of the House during our consideration of the Bill. I earnestly ask the House to accept the view that no advantage is to be gained and that it will hinder the completely free exercise of judgment of a Minister specially charged, with the assistance of the advice of an extremely experienced Department, to come to a decision on matters of this sort.

Might I ask the right hon. and learned Gentleman a question before he goes on to something else? This is on a point which he has made today and previously. He knows my interest in this; he has kindly given way to me on this previously. It relates to the sufficiency of a note from the judge, especially where the judge dies before this question arises. Does he not think that it might be most unfavourable to the prisoner? If we are to have the automatic sentence, there will never be an opportunity for the prisoner's representatives to place before the judge the mitigating factors, and they will be irrelevant.

I know that the right hon. and learned Gentleman regards this as an important point, and I hope that he will bear with me for a moment. As there will never be that opportunity, the judge at the trial may form the view that there is something especially vicious about the offence, a view which he might have altered had there been the opportunity for a plea in mitigation to be made to him. One might well have the situation that a very one-sided view was the only view which the judge could give in a particular case. Does not the right hon. and learned Gentleman think that this is a possible danger? It—

Order. The hon. and learned Gentleman may—I am not com- mitting myself—have a chance to catch my eye, but I do not think that it is fair to make so long an intervention.

I leave it at that, Mr. Speaker.

Let it be so. Suppose that there is a judge who has formed a view about a prisoner which is more unfavourable to him than it ought to be. This is precisely the sort of thing that the Home Secretary should consider when he looks at the judge's memorandum, and if he thinks that it is unduly unfavourable he will to that extent discount it. The same memorandum might well be before the judicial tribunal which the former Attorney-General proposes. That tribunal would have to do precisely the same. The whole question is one of weighing all the considerations and balancing one against another. If a Home Secretary felt that he ought to attach less importance than he might at first have been disposed to attach to a judge's memorandum, I hope that he would have the care and prudence to do so. It must be for him to assess what documents there are in front of him. Precisely the same may be said about the medical report on a prisoner or the report which comes from the governor of the prison. All these things may be more or less unfavourable to the individual. It must be for someone to assess them and try to arrive at a reasonable conclusion, balancing one consideration against another.

12 noon.

A learned judge who has had the whole case deployed before him, who has listened to the arguments but who, I agree, will not have heard in these circumstances a plea in mitigation since the sentence is automatic, is at any rate in a good position, if there is some specially vicious feature of the case, to take cognisance of it and commit it to paper or communicate it to the Home Secretary if he sees him personally. It is a matter of estimate and judgment.

If one looks at the Amendment, so far as I read it, it is limited to the case of persons who are imprisoned for life because they have been convicted of murder. If one were to make the proposal logical, however, clearly it should apply to all persons who are sentenced to life imprisonment.

Of course, that is what I would like to have done, but within the scope of the Bill it is not possible to make a provision which would apply to everybody. Therefore, one is confined to murder cases although, if this proposal were successful, I would like to see it extended to all others sentenced to life imprisonment.

I certainly accept that if the scope of the Bill does not permit the right hon. and learned Gentleman to achieve his purpose, that is an adequate answer. Obviously, if the principle were accepted it would have to be of general application to all serving life sentences. I would go further. It would have to apply, I believe, where a question arose as to the exercise of the Royal Prerogative by the Sovereign. If the position is that the Home Secretary's judgment is not to be relied upon—I do not use the word "trusted" because I am sure that that is not in the right hon. and learned Gentleman's mind—then we will have completely to recast our judicial and administrative arrangements in regard to letting people out on licence.

I do protest against the phrase that the courts will pass a nominal sentence and that the substance of the sentence will rest with the Home Secretary. That is not the position. Life imprisonment is the heaviest sentence that can be passed by the courts. It is not a nominal sentence in any sense. It is a real and extremely heavy sentence and one which results in the longest period of actual imprisonment.

I do not say what, in nine or ten years, a Home Secretary may do in the case of the very long sentences which have been pronounced in the last few years—sentences of 21, 25 years, and so on. They are shorter than life sentences. I would have thought myself that it may well be that Home Secretaries, when they come to consider the position of persons who have been in prison for nine, ten, eleven, 12, 13, or 14 years, serving sentences of determinate length in excess of 20 years, may well feel that the time has come when they should recommend to the Sovereign the exercise of the Prerogative of Mercy in the case of those persons.

I do not say one way or the other, but I again protest with feeling about the use of the phrase "nominal sentence" in the case of murder. It is in fact a life sentence, for the rest of the man's life. It is not the case that it is the Home Secretary who really passes sentence. The sentence is the heaviest that can be passed in law and it is the Home Secretary's function to decide whether, consistent with the public safety, and in the exercise of a common humanity to the man concerned, he should or ought not to exercise powers that are given to him and which for the last 13 years have deliberately been given to him by Act of Parliament, without criticism, to say that a man has served enough of an extremely heavy sentence. I hope that the House will feel that the case has not been made out for this Clause and that the law should remain as it is.

The right hon. and learned Gentleman said that it was implied that the Home Secretary's judgment was not to be relied upon. That is not the situation because this proposal would leave the decision with the Home Secretary. What puzzles me about his argument is that he seems to accept that the out-of-date evidence of the trial judge will add supplementary advice to the Home Secretary that will be useful, whereas the up-to-date views of judges with the same experience would not add anything of use to the Secretary of State, with his civil servants available. That is a most odd contradiction in the right hon. and learned Gentleman's argument.

I accept that there is not consistency in that matter. The view I put is the one that I have sought to put. As the hon. Gentleman says, the final decision, even if one takes this new Clause as being acceptable, rests with the Home Secretary anyhow and all that the Clause would seek to do would be to provide some aid for the Home Secretary in the form of the judgment of a judicial tribunal.

What I was seeking to say—and I accept the point made by the hon. Gentleman—is that, if information can be of value apart from the reports of the prison governor and others, that information may consist in some special impression left on the mind of the trial judge at the time which should be present to the mind of the Home Secretary. I would therefore hope that the House would accept that no arrangement is perfect but that the arrangement such as it is works well.

The fact is that this power has rarely—I do not say never—excited public anxiety and criticism. There may have been a few cases—I do not say no cases—in which public anxiety has been occasioned by reference to the fact that the Home Secretary has exercised his powers under Section 27 or the duty he has to recommend the exercise of the Royal Prerogative. I am grateful for the hon. Gentleman's comment. I have concluded my argument and I hope that the House will agree that the case for the Clause has not been made out.

I want to intervene for a few moments in the light of the Home Secretary's remarks. I thought that he started with a degree of indignation which was not warranted from the speech of my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson). These Clauses are not designed to limit the power of the Home Secretary. In an important particular they would considerably widen it, for they would extend the benefit of the licensing system from indeterminate life sentences to determinate sentences for a period of years. This, as I think the right hon. and learned Gentleman came to realise, is a humane, probably very necessary, decision—indeed, one which I cannot help thinking that he, on reflection, may feel will have to apply to fields wider than the one we are discussing.

There may come a moment when a man has been held in prison for 15 or 20 years and when the power to release upon licence is something which would be seriously wanted by any Home Secretary, and wanted distinctively from the exercise of the Prerogative of Mercy which the Home Secretary will always retain and which falls into a different category.

We are not discussing whether men should suffer capital punishment or not. We have got beyond that stage in the Bill. We are now on what we regard as a matter of supreme importance, touching very closely the responsibilities of the Home Office and of this House. This is what should be done to people who are sentenced for murder. We are not now determining whether they should be sentenced for life only for a term of years. We shall come to that in a moment. The question which we are considering is, assuming either a light sentence or a sentence for a determinate term of years, what should be the powers of the Home Secretary.

In this matter a wide variety of considerations has to be borne in mind. The protection of the public is one consideration and is very important. It is important not only that the public should be protected, but that it should recognise and know that it is protected and should understand the machinery which has been devised for the purpose. The reform of the criminal is another and one to which for many years all Home Secretaries have devoted increasing attention. The deterrence of others from committing the same offence very closely touches the responsibilities of the judiciary. The prisoner's condition is another important matter, for, as the Home Secretary indicated, there is probably a limit to the length of time that a man can be kept in custody without beginning to show a degree of deterioration which would give, at any rate the Home Secretary responsible for his detention, cause for thought.

Some of those considerations are intimately and necessarily the concern of the Executive, the Home Secretary and the Home Office charged with responsibility for keeping the man in custody, but some of them are obviously the concern of the judiciary which is responsible for the imposition of sentences and which is concerned to see that, subject to these other considerations, its sentences are properly carried out. Both, therefore, are of a continuing interest to two great elements in the State, the Executive and the judiciary.

It is quite obvious that in this matter—and this is one of the reasons why it is somewhat complicated—the interests of the judiciary and the Executive run side by side. For example, if the judiciary were to find its sentences being altered very rapidly in many cases by swift release, that would be nonsense. It would bring the whole law into disrepute. Equally, to be fair to our own interests and to the nation's interests, if the judiciary were imposing sentences of very great length—and we have recently had one or two examples—and the Home Secretary found himself with no power, whatever the condition of the prisoner, whatever the situation or new circumstances which had arisen, to release on licence or to do any of the humane things which he could do with an indeterminate sentence, that would raise problems of great difficulty, and we would all question the wisdom of such a situation.

I do not believe that, on reflection—and I hope that he will reflect during the course of the debate—the Home Secretary will regard Clauses designed to assist in a solution of those problems as ill-designed, or in some way geared to minimise or eliminate his powers. They are nothing of the kind. They are humane provisions designed to strengthen his hand and widen his powers, but at the same time to satisfy the public that the Home Secretary is getting the correct advice before making the final decision which everybody agrees has to be his.

I could not understand the right hon. and learned Gentleman's indignation. I thought that he must have misunderstood something my right hon. and learned Friend the Member for Warwick and Leamington said, because those are the purposes of the Clause and, knowing the Home Secretary as I do, I cannot help but feel that their purpose will commend itself to him as to any other humane man in his position.

I do not wish to detain the House at any great length, but I am bound to say that in some matters his argument seemed almost self-contradictory. One of my hon. Friends mentioned the trial judge. Somewhere in the back of the Home Secretary's mind, even at this moment, is obviously the point that what happens to the man is something more than the responsibility of the Executive. It has already occurred to him that the judge who tries the prisoner might be able to assist.

12.15 p.m.

For reasons which have been given, we rather doubt whether that is a very sensible solution, particularly if the sentence is automatic and indeterminate. No plea in mitigation has ever been put forward and the case is probably remoted in the memory of the man who is to be consulted. I would not have thought that that was the right way to consult the judiciary. But the suggestion has been made and that shows that the Home Secretary himself recognises that some consultation with the judiciary in this matter is necessary. I appreciate that, speaking on behalf of the Home Office, the Home Secretary is bound to represent the interests of the Executive at any time when they happen to coincide with or cross those of the judiciary, but, from the wider point of view of the public, most hon. Members would recognise that the public would wish the interests and views of the judiciary at least to be brought into play in the decision.

At one point in his argument the Home Secretary said that it would make much more sense if the judges were sitting with him. Let them sit with him. If he has an advisory committee, there is no reason why he should not call them in to advise on difficult cases. This has been done and any Minister with experience of administration will know that it is done in countless cases. The Home Secretary's views on that matter are probably very sensible and there is no reason why that should not be done.

The hon. Member for Watford (Mr. Raphael Tuck) has indicated that he feels that a wider range of advice might be brought in at this stage. That a wider range of advice should be called in is common ground. The view which we tend to hold is that the Home Secretary is bound to call in that advice and is bound to call in the evidence of the doctors or psychiatrists, or whoever else it might be. Both are interested. We would have no objection to formalising that.

This is not necessarily the most perfect scheme as drafted. Let us listen to the debate and hear what other suggestions are made. But the essence of our suggestion is that, while of course the Home Secretary would listen to the doctors and hear all the evidence about the condition of the prisoner and the possible home to which he might return and the circumstances in which he might be looked after and all the other things which are neces- sary and important to any man with any semblance of humanity, there is another consideration, the interests of the public.

It is in the interests of the public to guard very carefully and to be assured that, however much attention is paid to the interests of the prisoner, the interests of the public are safeguarded. Historically, the public looks to the judges and the judiciary as one of the great bastions of safeguarding the interests of the public in matters of this kind. Both judiciary and Executive are interested and I am not trying to put one above the other save in the sense that in the final resort there must be a decision, and my right hon. and learned Friend has made it absolutely plain that the decision will rest with the Home Secretary.

If these Clauses are adopted, the Home Secretary's powers will be widely extended beyond life sentences to determinate sentences, so that at any time he chooses he may refer these matters. This is a wide extension of his powers. The Clause provides that extension in such a way that the Home Secretary is assured of the wisest and best judicial advice available for the purpose and the public at large will be assured that he has taken that advice before reaching his final executive decision.

In those circumstances, I hope that the Home Secretary will realise that this is a matter not for indignation, but for quiet and careful reflection on one of the most important principles of penology which we have discussed in the House for quite a time.

I wish that the Home Secretary had taken a more constructive and forward looking view of this matter. I shall vote, not without hesitation, for one or other of these first two new Clauses. I certainly support the Home Secretary in his statement that all Home Secretaries in past years have, as I am sure he has, taken great trouble about these cases. I expect he will agree with me that these are not the sort of papers one reads late at night. when one's mind may be tired. They are cases dealing with the liberty of the individual, and one studies them when one's mind is fresh. I sought to make myself fully apprised of every consideration that might be relevant before I reached a decision on whether or not to let out a certain person sentenced to life imprisonment at a certain time.

I would like to pay my tribute to the careful and thorough work done in the Home Office in the course of advising the Home Secretary on these difficult matters. I thought that the Home Secretary paid rather too little attention to the fact that the number of such cases from about 1966 onwards is going to increase greatly. This will be a new load of work on future Home Secretaries, work closely connected with the liberty of the subject. In recent years only about one-seventh of the people convicted of murder have been convicted of capital murder.

A very substantial new load will fall on Home Secretaries of the future for this reason. Up to 1957 death was the penalty for all murders. In that year the law was changed, and since then something like six-sevenths of all those convicted of murder have been sentenced to life imprisonment. Up to now nine years in prison has been taken, not as the maximum, still less as the minimum period which a person sentenced to life imprisonment should serve, but as the normal period, and that in cases where the man had been reprieved because of some compassionate circumstance in the case. This means that until nine years after 1957 the full load of cases arising out of the Homicide Act will not begin to fall on Home Secretaries.

That load will be further increased, but by a relatively small margin, if the Bill becomes law and the death penalty is abolished altogether. The Home Secretary and the House must take into account that the task of Home Secretaries in dealing with these cases of convicted murderers sentenced to life imprisonment is going to be of a quite different order of magnitude in point of numbers from anything which has been the case before.

I would just like to correct one slight misapprehension. The right hon. Gentleman the Member for Hampstead (Mr. Brooke) has been referring to the load of these cases. And the right hon. and learned Gentleman for Warwick and Leamington (Sir J. Hobson) referred to the figure of 190. I think he was slightly mistaken. That is the number of murders known to the police in 1963. I do not have the actual number of persons sentenced to life imprisonment, but I think that it would be more in the region of roughly 40 a year, not 190 a year.

The Home Secretary will have noted I did not commit myself to the figure quoted by my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson), because I was not quite sure how it had been obtained.

This is a field in which I have myself formed some revolutionary ideas. I believe that sentencing and the law relating to sentencing is the part of our criminal procedure most capable of improvement. In saying that, I am not casting aspersions on the Judiciary. I think that it is commonly felt among all those who have studied the matter that much more information is needed, than was obtained in years gone by, before the court can pass the proper sentences. That is being done progressively, though it will not happen in these murder cases if life imprisonment is the only sentence available to the court.

I like the proposal in these new Clauses in that it might pave the way to wider use, outside murder cases, of the indeterminate sentence which I myself hope the Royal Commission now sitting may recommend. That procedure necessitates some kind of review tribunal such as new Clause No. 4 provides. I was glad my right hon. and learned Friend the Member for Warwick and Leamington would not insist on the tribunal being confined solely to the judiciary, which is what his new Clause says. I think that in considering these matters judges are bound to think first of deterrence. Because judges have not lived with prisoners in prison, as prison governors and prison medical officers have done, I doubt whether they would have the prison experience to help them to come to a right conclusion as to the point of time when a man should be released with the least likelihood of his reverting to serious crime. In my experience when one is considering either exercising the prerogative of mercy or releasing a man on licence one is thinking of the deterrent aspect and of the humane aspect—is it right in the man's own interest to keep him in prison longer? But, in addition, what was constantly foremost in my mind was the question whether the time had come when the man, if released, would be least likely to go back to serious crime—whether this was or was not the time when he would have the best chance of standing on his own feet and going straight.

I think that regardless of party we would all agree that the man who has once committed a serious crime is likely to have his ups and downs during a long period of imprisonment. Among other things, therefore, it is necessary to try to discover the moment at which, in the interests of society, he should be released. I say in the interests of society, not in his own personal interests. It is part of the duty of the Home Secretary and of our penal system to try to minimise the amount of crime by seeking to create the greatest likelihood that a man who has been convicted of a serious crime will not go back to crime again. That is the main reason why I should be pleased to see us working towards a kind of review tribunal which would not be confined to the Judiciary.

Is the right hon. Gentleman really not advocating what is normally understood by those concerned with this subject as a parole board as we know it in other countries? Would he not agree that is something inherently different from the Judicial Review Tribunal which is put forward in these Amendments?

It is different, certainly, from the proposed composition of the tribunal in new Clause No. 4, but I understood my right hon. and learned Friend to argue, not particularly for a specific kind of review tribunal, but for the general idea that the Home Secretary should consult somebody beyond the trial judge before reaching his decision. This is a fruitful idea, and one which the House should not dismiss simply on the Home Secretary's speech.

Secrecy is essential, as my right hon. Friend the Member for Monmouth (Mr. Thorneycroft) has said. Part of the purpose of the whole operation will be ruined if attention has been focussed in the Press upon a murderer shortly before he is released. I always exerted myself in every way to ensure that, if a man who had been perhaps famous at one time in the Press, because of a murder, was to be released, it should be done with absolute secrecy, in the hope that he would have the greatest chance of finding himself outside the prison gates without the television cameras being upon him. If that happened, there was clearly no hope of the purpose of rehabilitation as an ordinary member of society being served.

I heard what the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) said, but it is not what the new Clause No. 3 says. The Clause says:

"(b) the person convicted of murder shall be entitled to appear before the Tribunal in order to make representations to the Tribunal;

(c) the hearing of such information and representations may be held separately as the Tribunal shall think fit and shall not be heard in public unless the Secretary of State otherwise directs".

This means that only one bit of this reference shall be in private. If the Clause says that a particular bit of a hearing shall be in private, surely by implication it means that the rest of it shall be in public.

I am not a lawyer. I was simply going on the words which have been used by my right hon. and learned Friend. It seemed to me perfectly clear from his speech that he desired the whole procedure to be private. I would go further: if we adopted the procedure, I think that it would be undesirable for Questions to be in order in the House asking whether the Home Secretary had referred or would refer a case to the review tribunal.

I understand what the right hon. and learned Gentleman said, but the courts will not be allowed to know what he said. They must interpret the Clause as he provides it. The Clause as he provides it stipulates only that one part of the hearing shall be in private. By implication, the rest shall be in public.

Perhaps the hon. and learned Gentleman did not hear me say that I would support one or other of these new Clauses with some hesitation. The hesitation might be increased if I was convinced by the Parliamentary draftsmen that the Clauses were wrongly drafted. Meanwhile, I seek to support my right hon. and learned Friend's purpose.

Finally, it is customary under the present procedure to notify a person something like a year in advance of his release, if the Home Secretary has reached a decision that he shall be released. I am sure this is right. It gives a man new hope. It probably strengthens his resolve to deserve release at the end of the twelve months; so it would be a mistake if we were to contemplate this procedure starting to operate only very shortly before the proposed date of release. Indeed, such a man as this might very well need to go through the hostel system before he was released. This new procedure therefore, if it is adopted, should start to operate about a year before the date when the Home Secretary thinks release might be right.

If we do this here—it would be a constructive and bold action—I hope that it will in due course be extended to other long sentences. I repeat that I have revolutionary ideas about these matters. I believe that there are a number of people in prison now for longer than they need be to serve any public purpose, just as I think that some people are rather lucky to get out of prison when they do. From time to time, as Home Secretary, I felt anxious that, because of the expiry of the sentence, I had to release a particular prisoner and yet I was fairly sure that the likelihood of his quickly committing another serious crime against society was considerable. But these are wider issues.

This is not a party matter. I hope that enough has been said to convince the Government that it is a field in which we should be prepared to experiment, and that a new situation is arising, because of the larger numbers, which would justify us in experimenting without seeming to cast any reproach against the present Home Secretary or past Home Secretaries for not having done this work well, because in my judgement it has been done very well indeed.

I do not desire to detain the House for more than a very few sentences, but it would be wrong for the sponsors not to indicate to the House what view they, or at any rate the majority of them, have formed in regard to the new Clause. The new Clause raises a very important issue of principle in which the public is obviously very concerned and with which all of us ought to be con- cerned. It does not impinge in any way upon the principle of the Bill, which is for the abolition of the death penalty. Indeed, the proposal arises only as a kind of consequential proposal on the basis that the abolition of the death penalty is finally approved.

It seems to me that this is primarily a matter in which the Home Office is concerned. I think that it has been conceded in the debate that, if there is to be the intervention of some form of judicial tribunal in the Home Secretary's administration of prison sentences, this intervention ought not in principle to be confined to people who have been convicted of murder. If the principle is right, it must obviously apply to everyone who is sentenced to imprisonment for life and to anyone who is sentenced for a very long period.

It is no answer to that argument to say that we are dealing, only with life imprisonment in the case of murder and that it would be out of order to deal with anything else. The consequence of that objection is not to deal with it in this connection in the Bill but to provide some other opportunity, some other Bill, in which the whole matter, including everybody who is affected by it, can be included, instead of making a special inroad upon the Home Secretary's powers in these limited circumstances, when it is conceded that the argument, if it is a good argument, must apply to other circumstances as well.

Therefore, the sponsors, or most of them, are ready to accept the Home Secretary's answer to the very lucid and otherwise persuasive argument advanced by the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson). In support of that view, it is worth while to remind the House that the proposal is quite new, though it might relevantly and appropriately have been raised, perhaps more appropriately, at previous stages of this long controversy.

In Committee I put down an Amendment in similar terms, to associate the judiciary with the question of the release of prisoners. It was ruled out of order, and so was never discussed.

I fully appreciate that, and when I referred to an earlier stage of the long controversy I was thinking not of this Bill but of earlier alterations to our statute law in this respect. The right hon. Member for Hampstead (Mr. Brooke) says that this great change is becoming actual in 1966, but the real prospect of an increase in the number of people who might be affected by these proposals is not being made by this Bill; it was made by the 1957 Measure, as a result of which, on the right hon. Gentleman's own showing, nine-tenths of the people who would previously have been executed were no longer subject to execution.

It is worth while pointing out that, on the nomination of the previous Government, the House accepted in principle the abolition of the death penalty for murder, which it knew would wipe out the death penalty over much the larger portion of the field. No one then thought that any problem of this nature was involved, although it was obviously at that date that the great change was being made, rather than at this date.

Furthermore, when the death sentence was mandatory in all cases of conviction for murder, people were sometimes reprieved; indeed, in later years more were reprieved than were hanged. When they were reprieved the substitute sentence was imprisonment for life. From time immemorial this practice has been followed, with apparent satisfaction, without complaint and, so far as I know, without any representations being made from anybody that the position should be altered. If the whole position is to be altered some day it will have to be altered not only in respect of these cases but in respect of many other cases. This argument ought surely to be reserved for that occasion, instead of causing us to be delayed in enacting the principle for which these proposals are only a consequence, in order to deal with perhaps two life sentences a year—which has been the average since the 1957 Act came into force. I hope, therefore, that the House will not consider it necessary at this stage to adopt the proposals of the right hon. and learned Gentleman.

In answering the case put for the new Clause the Home Secretary was very critical of what had been said by my right hon. and learned Friend about the private way in which decisions may be reached in the Home Office. In my opinion this Clause is one of the most important that we have to consider. The Home Secretary's remarks carried the assumption that we are continuing things much as they have been, at least since 1952. Many of us would profoundly disagree with that assumption. With the end of hanging as a punishment for murder, punishment enters an entirely new phase. The argument put forward by the hon. Member for Nelson and Colne (Mr. Sydney Silverman) is only part of the answer.

It is true that these proposals might have been given effect to in 1957. Perhaps it would have been better if they had been. But I stress that it is much more urgent that they should be considered now. In many people's minds a much more dramatic change will occur now than occurred in 1957. The question may be arguable, but I do not think that it can be said that we are continuing things very much as they have been.

I want to speak simply on the question whether, from the point of view both of the accused and the public, the suggestion that we have to make is superior to that of the Home Secretary, who would prefer things to continue as they are. The question how far these decisions should be made publicly or in private is a very important one. The hearing of all cases before the proposed Judicial Review Tribunal would be in private, unless the Home Secretary otherwise directed. This is obviously right. The Home Secretary will say that his own considerations are private, too. The question is whether, after the Bill passes into law as it stands, they will be allowed to remain so. If the Home Secretary retains this power, sooner or later the strongest pressures will be put upon him to disclose every decision, if not the considerations which led him to them.

indicated dissent.

The Home Secretary shakes his head, but that is what I would expect. My right hon. Friend the Member for Hampstead (Mr. Brooke) has pointed out that the release of all prisoners on licence—and there will be a great many, some of whom will be fairly well known—should not be made public. We would all agree about that. That would be almost bound to stimulate morbid publicity, and, from the point of view of the released prisoners, highly undesirable manifestations.

The only conceivable argument in favour of publicising these releases is that people should know that justice has been done. With the Judicial Review Tribunal the public would be more likely to accept that justice had been done—not seen to be done, but known to be done. This is a very important factor in the public mind. It would count for much, and it would relieve the pressure upon the Home Secretary.

The right hon. and learned Gentleman has made it clear before now that he would be prepared to take full responsibility for every decision and, if necessary, to meet the reproaches and attacks that might come in the House. On a previous occasion he said that if, in the exercise of his discretion, he reached a bad decision he would be ready to face the consequences in the House. He regards that as a safeguard, but I profoundly disagree. First, it is a question whether the House of Commons—where the full facts of such cases can never be know—is the right place for arguing decisions of this kind. I would very much regret it if any case of this kind came to the House for argument.

The Home Secretary can get into real difficulties. Any one who has had any connection with the Home Office knows how difficult it is to defend a decision in this place when all the facts are not known and, further, must not be disclosed. That is very difficult. It is unfair to the House and to the Home Secretary—and it could be unfair to the individual concerned. Therefore, I must disagree with the right hon. and learned Gentleman in his view that the House of Commons can in this instance be re-guarded as a safeguard of justice.

That is one of the strongest reasons I have for supporting the new Clause. The House of Commons is sparing in the exercise of its rights to criticise the Home Secretary in these matters. There it shows its wisdom. I believe that this tradition should continue.

Secondly, I do not think that the House of Commons or anybody else would be able to form a view on the Home Secretary's exercise of his discretion, whether good or bad, under the terms of the Bill. Would the release of all life prisoners be made public? If not, the House of Commons would have no precise details by which it could judge these matters. It would be able to form views of what is happening only on broad statistics which might be called for from time to time. We have discovered from our deliberations that these statistics can be grossly misleading. No statistic is more misleading than the so-called average life sentence and the average period of nine years. The House would have some supervision of the system but could give no protection to the individual. That is what troubles me. Therefore, I think that the idea that the Home Secretary would be prepared to come here and face the consequences of a bad decision is an illusory safeguard and cannot really be put against this proposal for a tribunal.

My final point on the alternative proposal put forward by my right hon. and learned Friend is this. I believe that the Bill, unless it is changed in this way, will disturb the very delicate balance which has to be observed between deterrence and penology. It is no good pretending that the judiciary, on the one hand, and the Home Secretary or the Executive, on the other hand, have an identity of outlook, because they do not. We know that the Executive will increasingly be concerned with penology; and this is right; this is as it should be. We are entering an era—my right hon. and learned Friend forecast it—when we shall be ready to make bigger and bolder experiments in penology. The judiciary is not exclusively concerned with deterrence, but this must be the very first consideration of this very important committee.

Let me put it this way. In the course of a year a good many sentences must be passed in the courts which would he regarded by the Home Secretary and his advisers as penologically objectionable. That must happen. I am sure it does happen. To that extent there is always bound to be this difference, and that must always be so, and, in my view, it is more likely to arise in future in this field, now increased by the addition of capital murder, than in any other. We do not say that the judiciary's discretion should be overwhelming. We do not think it should be, but we do think that there is a strong case for establishing a better balance between the judiciary and the Executive.

I beg the Home Secretary and the hon. Gentleman the Member for Nelson and Colne to believe that these changes have been offered not with a view to protracting the Report stage of this Bill but because we genuinely think they offer the sort of balance which the House and the public must desire to see. We think they offer this balance in decisions which will settle not only the future life of murderers but the security of society as well, and we believe that the alternative proposals as they stand offer that right balance, and that is why we are asking the House to accept them.

The speech which the House has just listened to by the right hon. Gentleman the Member for Ashford (Mr. Deedes) illustrates, I would say, the great difficulty which many of us feel about accepting this series of new Clauses which, as the right hon. and learned Gentleman the Member for Warwick and Leamington (Sir J. Hobson) explained to the House, are really all part of one single concept.

The difficulty is that, however much sympathy we may have with the views expressed by the right hon. Gentleman the Member for Hampstead (Mr. Brooke) as to the necessity, the desirability, of experimenting with some system of parole, some system of ending sentences when it is no longer necessary to keep people in prison, the proposals on the Paper quite clearly are, and the only matter which we are discussing is, a system proposed for a judicial review tribunal which, in the words of the right hon. Gentleman the Member for Ashford, will put into the picture a built-in element designed to support the idea of deterrence.

That was the whole burden not only of the speech of the right hon. Gentleman the Member for Ashford but of that of the right hon. Gentleman the Member for Monmouth (Mr. Thorneycroft) who told us, "It is all very well for the doctors and the prison governors and so on who are looking primarily at the interests of the man himself to give their advice, but the judges represent the public". In parentheses, I was a little surprised to hear him put that as though the Home Secretary was not representing the public, because the Home Secretary, to my mind, clearly does represent the public and, indeed, the man as well.

But it has been put forward by the right hon. Gentleman the Member for Monmouth and the right hon. Gentleman the Member for Ashford that here we are building into this system an expression of opinion in support of the deterrent aspect, and that this is some way of putting a counterbalance to the views of prison governors, doctors and so on, who may be more inclined to look at the interests of the man himself.

If one had that, and then, having that, one had some further tribunal which considered the view of each side, and then recommended advice to the Home Secretary, that would be an elaborate procedure but it would at least be balanced, but that is not what is proposed. What is proposed here is that it is this Judicial Review Tribunal which should advise the Home Secretary, a Judicial Review Tribunal whose members are concerned, as the right hon. Gentleman said, with the deterrent aspect. So, the advice which the Home Secretary would be getting from this tribunal would be advice directed towards the deterrent aspect.

I personally would have a great deal of sympathy with what was suggested by the right hon. Gentleman the Member for Hampstead if that was what was being proposed as an experiment, certainly, because the Royal Commission will ultimately have to advise the public and the House as to whether some such system as the right hon. Gentleman has in mind is the right system. Certainly, as an experiment proposed to help the Royal Commission in its task, I would have no objection at all to the idea of a parole system in these cases, provided that the tribunal which either made the decision or advised the Home Secretary were a tribunal which really represented all points of view on this matter, were a sort of parole board, in other words, which ultimately we would probably be having, but this is something quite different. This is a Judicial Review Tribunal directed towards the deterrent aspect. This is inherent in what is put before the House.

This is the last opportunity this House will have of deciding what sort of tribunal it is to be unless, as I understand the procedure, the other House amends the Bill when it gets there, and sends an Amendment back to us to consider. If the other House accepts what is proposed in the new Clause, and we accept it, there will be no opportunity of going into the matter again.

I cannot accept that such a tribunal, with the emphasis on the deterrent, as now proposed, is the right way to make an experiment in changing the law. Much as I should like, therefore, personally, to see some experiment on the sort of lines which we have heard expressed from the back bench opposite rather than from the Front Bench opposite, I find myself, for that reason, quite unable to support this series of new Clauses as a whole.

I am extraordinarily glad to have the opportunity, for the first time, of making a very small contribution to the debates on this Bill, and I have no hesitation whatever in backing wholeheartedly the proposals so very ably put forward by my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson). I believe that the review tribunal which my right hon. and learned Friend has proposed will be of immense value to the Home Secretary.

I do not wish, at this stage, to go over all the arguments for the review tribunal, because I believe that these have already been extraordinarily well expressed, but I should like to pick up one point which was made by the Home Secretary, and that was with regard to secrecy. The right hon. and learned Gentleman said that he preferred the departmental procedures and the complete control of this matter by the Home Secretary because of the secrecy that would thereby surround it. I think that it would be fair to say that his argument rested on the premise that he would have available to him reports from his prison governors, from the psychiatrists attached to the prison staff, and in fact from the whole of his Department which would be studying this matter.

I am not convinced that that would give the Home Secretary as impartial a review as the review which would be given to him by the review tribunal. I agree that if a prisoner has been in a particular gaol for a long time under the surveillance of prison staff he is well known to that staff, but sometimes, because a prisoner is well known to the prison staff, they might not form the same impartial judgment of his character as could be formed by an external review body, and this is why I depart from the Home Secretary in his views on secrecy.

My right hon. and learned Friend the Member for Warwick and Leamington made it clear that this review body could sit either in secret or in public. I do not think that I would be misquoting him if I said that I gathered that he would perfer the review body to sit in secret. That was certainly the view of my right hon. Friend the Member for Hampstead (Mr. Brooke), who is a former Home Secretary. If the review body is set up, I think that it should sit in secret. Leading from that, I believe that its views would be much more impartial than the views of the persons who had been in charge of the prisoner for many years.

I believe that the Home Secretary is slightly wrong in suggesting that this would, in effect, he a precedent if it were accepted, but I am not afraid, and I do not think that the House should be, of establishing a precedent in this matter. If this is an opportunity for establishing a precedent which might well be widened and extended in future legislation, I think the House should take it and thereby give its blessing to this review procedure.

The hon. Member for Nelson and Colne (Mr. Sydney Silverman), who is in charge of the Measure, indicated that there was a difference between the sponsors of the Bill on this matter. One of the sponsors of this review procedure is my hon. Friend the Member for Lewisham North (Mr. Chataway), who is also a sponsor of the Bill, so one can infer—and I admit that the hon. Member for Nelson and Colne made this point—that there is not unanimity among the sponsors of the Bill with regard to these proposals.

I hope very much that my views about secrecy will be conveyed to the Home Secretary by the Minister of State. I regret that the right hon. and learned Gentleman is not in the Chamber at the moment. I believe this matter to be of the utmost importance, but I believe, further, that secrecy could be as well maintained under the review procedure as it is under the departmental practices. I hope, therefore, that the new Clauses will be accepted.

Will the hon. Gentleman explain to the House how it will be possible for a review body to have an estimate of a man's character without being dependent on the psychiatrists, doctors, and the prison governor who have observed him over the years?

I would answer the hon. Lady by saying that my right hon. and learned Friend the Member for Warwick and Leamington dealt with this point, and at the beginning of my speech I said that I did not wish to reiterate all the points that had been previously made in the debate.

I think that the Minister's question has been answered, if tangentially, by a number of speakers, and if the hon. Lady looks at paragraph (a) of new Clause 3, she will see that the tribunal will be able to get all the relevant information that it wants from the Secretary of State, and will be able to ask for any further information which it considers necessary.

Incidentally, while I am referring to new Clause 3, perhaps I might say that the point made by the hon. and learned Member for Northampton (Mr. Paget) was not valid. He sought to suggest that paragraph (c) which refers to the

"hearing of such informaton and representations"

referred only to the preceding paragraph (b). Surely the information referred to in paragraph (c) must refer to paragraph (a).

I think that the drafting will have to be looked at again anyway, but what it means is that the Clause as at present drafted deals with the matter in the same way as we deal with divorce evidence, that is to say the information and representations, roughly speaking the evidence, are private, but the report or judgment is published. As a matter of interpretation, I should have thought that the drafting would have to be corrected.

I have no doubt that improvements can be made in the drafting, but I hope that the intention of those who have supported the new Clause is quite clear.

Very few hon. Gentleman opposite who have taken part in the debate have advanced what I would call objections of principle to the scheme outlined by my hon. and learned Friend the Member for Warwick and Leamington. It has been suggested that the drafting can be improved. It has been suggested that the judicial review tribunal should be differently constituted. It has been suggested that additional expertise should be added to the three judges who it is proposed should constitute the tribunal.

It has been suggested by the hon. Member for Nelson and Colne that this is not the place in which to make this reform. I have a certain amount of sympathy with the argument which the hon. Gentleman there advanced, and I do not agree with my hon. Friend the Member for Ashford (Mr. Deedes), who suggested that the whole picture had been changed by the Bill; that as a result of the Bill we were faced with a completely new situation.

For some years now the majority of those who have committed murder have not been hanged. The need for this kind of review procedure has, therefore, existed for some time, and I would not argue that the Bill, resulting as it will in perhaps two or three people who under the present system would be hanged in future being sentenced to life imprisonment, necessarily alters the situation vastly. None the less, it seems that we have here an opportunity for initiating a reform which is of importance in itself, and has most important implications. I do not wish to go over at length the arguments which have been adduced in favour of the scheme.

Has the hon. Member considered this? He has admitted that but for this Bill this present proposal would not be before the House at all. He has admitted that the Bill does not add substantially to the number of people concerned. I follow the rest of his argument, but does he think that the rest of his argument justifies a long debate, a long argument, a long controversy which might imperil the speedy passage of the Bill altogether, which Bill, if it is not passed, will not make this reform in any case?

I am as concerned as the hon. Member is to see that the Bill goes through. I believe that it will do so. I believe that the scheme to which these new Clauses refer would be an improvement of the Bill and would initiate important reforms. I do not think that many hon. Members are happy with a situation in which a life sentence appears to be of so much less severity than a long fixed-term sentence. The sentences which have been passed in recent years, of 30 or 40 years, have been giving a great deal of concern to many hon. Members in various parts of the House. What this scheme would do would be for the first time to enable the Home Secretary to release on licence those who have been committed to prison on long fixed-term sentences for murder.

I should have thought that it would be absolutely inevitable if we were to include this scheme in this Bill that at some future early date legislation would be introduced—

On a point of order, Mr. Deputy-Speaker. There are less than 40 Members present.

The hon. Member is too late. A count could not be completed until after 1.15. No count is allowed after 1.15.

If such a scheme were embodied in the present Bill it would be absolutely inevitable that within a very short period we would have legislation to enable the Home Secretary under similar procedure to release on licence those sentenced for long terms of imprisonment for other offences. That is something which has support in other parts of the House.

I thought the hon. and learned Member for Dulwich (Mr. S. C. Silkin) was unfair to the speech of my right hon. Friend the Member for Monmouth (Mr. Thorneycroft) when he suggested that that speech was concerned only with deterrence. There seem to be four reasons for supporting the scheme. The first has to do with deterrence. Whether one likes it or not, the impression has been given over many years that murderers can be virtually certain of being released after nine years.

I think that the retentionists bear a heavy measure of responsibility for propagating that idea. A large number of those who have argued in favour of the death penalty have suggested that murderers are automatically let out after nine years. This scheme, embodied in these new Clauses, would help to show that there is no such prospect of a certain relatively early release before a murderer.

Secondly, apart from this important deterrent effect, the scheme would seek to reassure the general public. There is a third advantage I see for the scheme. At present, any murderer must be sentenced to life imprisonment. There are a number who clearly do not deserve a sentence even of nine years. At present, the Home Secretary does release some murderers after a very short period. Under the scheme proposed in these Clauses and in a subsequent Amendment, the judge in those circumstances would be able to sentence someone who had formally committed a murder—perhaps of a mercy-killing nature—to a period of two, three or four years in prison.

Fourthly, the House would be well advised to accept these Clauses because they would enable us to introduce a procedure for the release of those who are sentenced to very long terms of imprisonment. I appreciate the difficulties which some hon. Members feel about accepting a scheme which has not been debated in earlier stages of the Bill. The Bill will now go to another place and it would be open to the Government to amend the scheme in any way they wanted in another place. The Home Secretary today put up a very perfunctory argument against these new Clauses. He sought to argue that he had sufficient advice and that the advice that would come to him from the Judicial Review Tribunal under this procedure would be superfluous. Yet, at the same time, he said that the advice of the trial judge was of value.

The right hon. and learned Gentleman thought that the impression gained by the trial judge at the trial of a murderer might add something to the advice he received from his civil servant. If the trial judge has some particular experience which enables him to give advice that is of value to a Home Secretary, even though that advice might be eight, nine or ten years out of date, the judge may be merely able to tell the Home Secretary what was his impression of the man eight, nine or ten years ago when he appeared before him. If the Home Secretary bellieves that because of the judge's particular experience his advice is valuable even in those circumstances, surely the advice of a tribunal such as this, constituted of three judges and perhaps some others with additional experience, would be even more valuable.

I hope that the Home Secretary will be prepared to think about this matter again and that the House today will accept the scheme outlined in these Clauses and in the one Amendment which is to follow.

Without implying any sort of criticism, because I quite appreciate that Home Secretaries have to eat as well as others, I am sorry that the Home Secretary is not present because—I see now he is coming back into the Chamber.

My right hon. and learned Friend is present.

I am obliged to the hon. Lady for calling attention to the presence of the Home Secretary. I had refrained from trying to catch your eye, Mr. Deputy-Speaker, until the Home Secretary was present, because it would be more courteous for me to make observations in his presence than in his absence.

At the very end of his speech the Home Secretary made some observations which I am glad to have the opportunity to ask him to consider. I put it no higher than that. In these matters the fact that one takes a different view is no implied criticism. There is plenty of room for more than one view in this matter. Suggesting that a view put forward, even by the Home Secretary, may be wrong and worth further consideration does not mean being critical of him personally. I stress that what I am asking him to do is to reconsider what he said in the light of one or two observations I wish to make upon it.

My hon. Friend the Member for Lewisham, North (Mr. Chataway) asked the right hon. and learned Gentleman a question and the reply was that, in substance, the Clause was leaving the final decision with the Executive, in the person of the Home Secretary, merely providing aid for him in the exercise of that discretion. That suggests that one of the fundamental reasons for this new scheme has so far escaped the right hon. and learned Gentleman's attention. My hon. Friend has just developed one point material to my argument and I do not wish to deploy it at length, but it seems to be agreed on both sides, and was inherent in what the right hon. and learned Gentleman said, that, in some form, whatever it may be, the judiciary may well be able to be of assistance to the Home Secretary in this difficult task and as a question of principle the right hon. and learned Gentleman accepts that it is right that he should think in terms of obtaining from the judiciary the best help it can give.

The Clause—and this is fully in line with that principle—makes it clear, first, to the public that that assistance is being taken and must be taken. It also makes it clear the form in which that assistance is being sought. These are very important considerations in a matter which must be decided in secrecy. I am sure that the right hon. and learned Gentleman will not think it personally rude if I suggest that he was somewhat unduly touchy about the question of secrecy. My right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) said that these things were decided entirely in secrecy and that is a fact. He was right to say it.

The Home Secretary's argument not only agreed with that, but was to the effect that it must continue. It is not something that anyone should be touchy about. It is right that we should accept and that the public and we should know and base our thinking upon the hypothesis that the decision will be taken in secret.

It is taken in secret at the moment and I think that we all agree that it should be, except, possibly, in the most exceptional circumstances. As I understand the Clause, it would provide that the Home Secretary need only say that the hearing of the tribunal, whatever it might be considering, must be in private and that would be an end to the matter. The Clause would give him an option if he thought that, for special reasons, a certain matter should be heard in private. If that understanding of the Clause is not correct, it is merely a matter of drafting to put it right.

It is of tremendous importance, when a matter dealing directly with the liberty of one subject and the safety of all the others is to be decided in secret, that the public should have the assurance that the assistance of all bodies which can assist is being taken and that it should also know the form in which it is being taken. The Clause would assist the Home Secretary in two ways. First, it would enable him to get the maximum assistance from this body of persons who may be able to assist. He has all the facilities for obtaining all the other information and expert views that he may need but what there is not at the moment is any system for obtaining the assistance of the judiciary. Therefore, from his point of view, one would think that he would regard it as a help to have some system for obtaining that further assistance. It might well help him to remove a possible cause of unease in the public mind.

The hon. and learned Gentleman advocates this principle in the case of persons in prison for life and the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) made it clear that he would not wish it to be limited to persons convicted of murder. Would the hon. and learned Gentleman advocate it in the case of persons sentenced to less than, say, 15 years' imprisonment? If the answer is "Yes", why should it not also apply to those serving less than 14, or 12, or five, or three years? If one is to introduce the principle then, logically, would not the hon. and learned Gentleman accept that one should say, in the case of a sentence where there is the question possibly of the exercise of the Royal Prerogative, that no decision should be reached except with assistance of the sort the Clause envisages?

As the right hon. and learned Gentleman once said to me, interventions usually prolong speeches and that one but I welcome the opportunity to deal with the point. I was afraid that I might be repeating the arguments and going out of order if I did so. I regard this as a very useful precedent to be further extended in future. It is limited in the Bill to murder because anything else would be out of order.

In our criminal system, we have—and this has been one of the arguments advanced by some abolitionists—a great anomaly whereby train robbers, for instance, can be sentenced to 30 years' imprisonment, in which case the question of the review of sentence is very difficult because of the limitation of Section 27 of the Prisons Act, 1952. Then we have persons convicted of even more serious crimes who are sentenced to life imprisonment but in whose cases the Home Secretary is able to exercise his discretion under the more readily available powers of Section 27.

I welcome the opportunity to say that the way to remove that anomaly is by devising a new system for the consideration of the release of prisoners serving a sentence and that that system should not be limited to those convicted of murder but extended to other cases.

The right hon. and learned Gentleman asks whether I think it should be limited to 15, or 12 years, and so on. At the moment, I would be prepared to listen to the arguments that there should be no restriction upon this at all unless it raises serious administrative difficulties. If it raises such difficulties, then this is a decision which must be taken in the light of debate on the point. We have so many things in our system where we have to impose a limit one way or another. Pensions have to be paid at a certain age and we are always being asked why, if a pension is paid at 60, it should not be paid at 59, and so on. This is a difficulty that is by no means a reason for not attempting to make a useful reform.

Does not my hon. and learned Friend agree that, once one started with murder cases, one could go on to other long sentences—for instance, seven year sentences—and thereafter consider whether it should be further extended? Is that not preferable to the argument of the Government, which is that, if it applies to murder, it should automatically apply to all sentences of imprisonment?

I agree with my right hon. and learned Friend and accept that suggestion. I agree that it would be logical to extend the system. That is what I have in mind in supporting the Clause. As to the second and more detailed point—where would one draw the line? —I repeat that I am not sure that one would necessarily draw the line, but if for administrative reasons one did, that is not of itself a good reason for opposing anything in the nature of an experiment of this kind.

1.30 p.m.

I was asking the Home Secretary to reconsider his statement on the proposition that this proposal gives extra aid. I suggest that in two respects it indicates that we have not yet made entirely clear what some of us have in mind. I have endeavoured to deal with the argument as quickly as I can and without repetition. A second argument is this. This system gives the prisoner the right for the first time to make representations to someone. Under the present system, with the automatic life sentence, there is no opportunity for him to make any representations at all.

The question why he did it is irrelevant to the question whether he did it, except in cases of provocation. There is no opportunity to make a plea in mitigation. It is worse than that, as a matter of fact, because the automatic life sentence has the further effect that the man is deprived of his right of appeal against sentence. In any other case, in the case of a 20s. fine, a man can himself or through his solicitor or counsel put forward all the arguments in mitigation, and if he does not impress the first court which has sentenced him he can do the same in another court, in the divisional court, at the quarter sessions, or whichever is the appropriate court.

Under our present system we are depriving the prisoner of any right at any stage to make representations and to appeal against the way in which he is dealt with. Under new Clause No. 3 the person concerned would have a right for the first time to appear at or to be represented at the discussions which precede the determination of the question whether he is to be released or not. I suggest that that is a very good thing, not only because a man ought to have the right to be heard in his own defence when somebody is deciding what is to happen with the rest of his life, but also because it offers the best prospects of avoiding the danger of mistakes.

The possibilities of mistakes have been discussed in this debate. One is in connection with the point I raised, that a judge, through no fault on his part but because the redeeming features have not been brought to his attention, formed a view unduly adverse to the prisoner. The Home Secretary concedes that that may happen, but says that it will all come out in the wash. So it might. Somebody might, on behalf of the prisoner, discover the redeeming features and see that they were brought to the attention of those who have to consider what to do with the man. That might happen. But if the man has the right to be represented, then it is much more likely that those facts will be discovered by somebody and will be brought to the attention of the tribunal.

I entirely accept that the present Home Secretary, and, indeed, every Home Secretary, is anxious to avoid the danger of such mistakes. But I respectfully suggest to him that what we are proposing here is an additional safeguard in his armoury to protect himself against the possibility that such a mistake may be made. I think that the contrary is unarguable. There must be an additional safeguard if we provide that the man should be represented and should make representations, because the one thing that his representatives will seek to do is to adduce everything that can be said in his favour before the tribunal. I suggest that that is another reason why what we are suggesting in this Clause does not merely provide for giving the Home Secretary aid but provides additional safeguards for the prisoner as well.

The Home Secretary said that though mistakes might happen the remedy for those mistakes was that the Home Secretary, like every other Minister or back bencher for that matter, is open to criticism and if he does the wrong thing and fails to discover all the relevant facts he must go. I quite agree. I know that he puts forward that view entirely genuinely. If a case came to his attention where he made a mistake I am sure that he would implement those feelings.

But how is anybody to find out whether a mistake has been made? So far as the Home Secretary is concerned, and especially one with the particular interest in these matters that the present Home Secretary has, doubtless he would do everything that occurred to him. He would pursue ever line that occurred to him for getting all the information he required, and he would not make a decision until he was satisfied that he had done that. But he might unwittingly have overlooked some other channel of information which persons representing the man might discover.

How is anybody else to discover whether the Home Secretary has made a mistake? I think it is agreed by all hon. Members that it would be wholly undesirable if the Home Secretary had to answer Questions in this House about what he believes to be the relevant facts, what crimes a man had committed, what facts should he taken into account and so on. It would be equally undesirable for that to be done by means of a private exchange of letters. This must be secret and confidential, or not done at all. If we are agreed about that, how is anybody ever to discover whether the Home Secretary has made a mistake?

If we have no means of discovering whether the Home Secretary has made a mistake, he himself could have no means of discovering it. If we have no means of discovering it, what sense is there in saying that if the Home Secretary makes a mistake he is then subject to criticism and must go? It is because of these considerations, because there is no way, without impinging upon secrecy and the confidential nature of this matter, of knowing whether the Home Secretary is right or wrong, that it is so important that every possible safeguard should be provided and should be seen to be provided.

I associate myself with the observations of my hon. Friend the Member for Lewisham, North (Mr. Chataway) concerning the speech made by the hon. and learned Member for Dulwich (Mr. S. C. Silk in). I do not think it was fair of the hon. and learned Member for Dulwich to say that such a tribunal would be concerned only with the deterrent aspect. That is not as I understand it. As I understand, this tribunal would be independent, and would consider not merely its personal view in the abstract on questions like deterrence and the like, but would be a tribunal at which the person concerned could make representations and to which he could adduce evidence, expert or otherwise, and it would assist in the task of sifting that evidence and expressing views about it. It is wrong, misleading and dangerous in one's own mind to tilt the emphasis as the hon. and learned Member for Dulwich did. I am sure that that is not in the minds of my right hon. and hon. Friends and myself in moving and supporting this Amendment.

I would again emphasise that we regard this as an experiment. The hon. Member for Nelson and Colne (Mr. Sydney Silverman) asked, "Why do it now?" Perhaps I can answer with the question "If we are not to do it now, when are we to do it?". If we do not take the chance now, we shall have no opportunity—and by "we" I mean private Members, and this is still supposed to be a Private Member's Bill—to do it unless and until one of us who has sufficient interest in the subject is lucky in the Ballot.

Only the Government could do it if we do not take this opportunity now, and I am not making a party point when I say that this is an opportunity for private Members to initiate an experiment. If we have not got our details right, the Government can very soon put them right. There is all this nonsense about what the other place would or would not do, but if we had done the wrong thing the Government would soon allow half a day, with the Whips on, to introduce a Bill putting right our mistakes. Our object is to improve our system, to initiate a spirit of experiment in this respect, and to get something moving. If private Members do not act today, we shall have missed one of the few opportunities that is ever presented to us to initiate something that may well be of great and lasting good.

Having voted for the Second Reading of the Bill, I owe it to the promoters of the Measure to explain briefly what my attitude is, not only with regard to this Clause, but, as a background to that, to the Bill as a whole. When I voted for the Bill's Second Reading, it was not because I thought that it was a perfect piece of legislation, but because I thought it gave an opportunity for some alteration to be made in the law, which badly needed to be made in order to deal with a most unsatisfactory state of affairs.

I hope that the hon. Member for Nelson and Colne (Mr. Sydney Silverman)—he is not at present in the Chamber, but he may well read what is said in the debate—will forgive my saying that I think that he has missed a very great opportunity by the way in which the Bill has been handled—and I speak as one who, by inclination, is an abolitionist. I am not a full abolitionist, because I believe that second murderers should be subject to the death penalty. Apart from that I am an abolitionist, and it has really shocked me to find that there has not been any spirit of give and take in the handling of this Bill at all. It is most highly regrettable.

If we are to have abolition of the death penalty, it is necessary for us not only to do what is right in the interests of justice to people who come before the courts on a charge of murder, but to consider whether the public are getting the protection to which they are entitled from Parliament and the Government. I should have thought that any hon. Member seeking to abolish the death penalty altogether would have welcomed with open arms the opportunity given by the new Clause moved by my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) for providing an alternative to capital punishment; an alternative to the present, in my opinion, not entirely satisfactory state of affairs where we have a simple sentence of life imprisonment subject to the exercise by the Secretary of State of his powers to release on licence.

1.45 p.m.

When I say that, I mean no disrespect to the Home Office, because I am one of the last Members of the House who would ever offer disrespect to the Home Office. I have taken part in this system of scrutinising cases for release on licence. I know how thoroughly, conscientiously, carefully and patiently it is done. I also know how very difficult some of the decisions are. When the various factors that are borne in mind in these cases by the Home Office have been balanced one against the other, it sometimes becomes almost a purely Ministerial decision whether the man should be released or not.

Whatever the process, whatever the attitudes, let us consider what the result has been, and what the public think about that result. We know from published figures that although the Homicide Act, 1957, has not been in operation for many years, the practice that prevailed before 1957 and the practice that has prevailed since the Homicide Act was passed is leading us into a situation in which the ordinary type of non-capital murderer is likely to be released within a period of nine years. That may well be the right period—I do not say whether it is or whether it is not—but the public certainly feel some anxiety about just that very period of nine years.

The point is that the public know that the decisions are taken entirely in the Home Office but feel that these are matters on which the judiciary should have at least as much say as the Home Secretary. I very much hope that Amendment No. 5 will be called and will prove acceptable to the House, as I think that it would provide a useful way of filling the present lacuna in line 3. Whether or not that Amendment proved acceptable or not is beside the point in the argument that we have to consider for or against new Clause No. 1 but it seems to me that new Clause No. 2 is appropriate, especially if that Amendment were to be accepted.

I would ask hon. Members to consider new Clause 1 for the moment, and to remember the power which the Home Secretary already has under, I think, Section 19(b) of the Criminal Appeal Act, 1907, which has been amended, though not in a sense that affects this point. Hon. Members will find that there is already a statutory precedent for a procedure which enables the Home Secretary to refer matters to the judiciary. Therefore, we are not breaking new ground in an especially adventurous way nor, incidentally, are we precisely following that particular precedent I have mentioned.

It would not be appropriate to do so. What we are doing is to give the sponsors of the Bill the opportunity of ensuring that, when release on licence has to be considered, the responsibility is shared by the Home Secretary with the judiciary. Surely that is a sensible thing to do? The final responsibility lies with the Home Secretary. I grant that. But before he exercises that responsibility he will have what I think any Home Secretary would consider the very great advantage of getting the opinion of the judges on this matter.

In doing so, not only will he be fortified by the opinion of the judges, but he will be giving public opinion the satisfaction of knowing that this is a matter in which the judges have used their discretion, applied their knowledge and experience and offered advice to the Home Secretary, coming to each case with fresh minds. In my opinion, it would not be suitable if the possibility were to arise for the learned judge who tried the case in the first instance, perhaps many years before, to be a member of the judicial review body.

That is not written into the Clause, but I think that that situation would, naturally, be avoided, although, as the Home Secretary said on Second Reading, the opinion of that judge would, if possible, be obtained. I am not sure that this opinion at the time of the review would be worth very much, because he would have tried hundreds of cases since, but it is a very good thing for the judge who tries the case to make a record, as the Home Secretary says, and to let the Home Secretary have a note of this record, of what is likely to be the most suitable period before release on licence.

In our constitution, as advised by Montesquieu, we do our best to keep separate the functions of the Executive, the legislature and the judiciary, but it is impossible to do so entirely. Inevitably, there is some overlapping. Inevitably, there must be occasions on which one of those three great elements in the constitution leans to some extent upon the others. I think that we have found in these new Clauses one of those occasions on which the Executive and the judiciary can be of great help to each other.

It is very tempting to follow the detail of the new Clauses and to discuss them, because this is a very interesting and important subject. I take it from the fact that neither the hon. Member for Nelson and Colne nor any other sponsor has put down Amendments to the new Clauses that if the new Clauses are accepted in principle, their drafting and their detail are about right. I happen to know that my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson), in the light of his great experience, has given an enormous amount of patient thought and study to these new Clauses before putting them on the Notice Paper. Having read them carefully again, I think that they are workable, besides being sensible and well-drafted.

The Home Secretary is in the Chamber. Knowing what an extremely open mind he has on so many matters, and knowing that he can claim not to be obstinate and doctrinaire, as a rule, I hope that he will feel that this is an honest attempt to overcome what in the minds of many people in the country, as well as in the minds of many hon. Members, is one of the principal difficulties in abolishing the death penalty—what is the alternative to be? Here is a satisfactory, workable, constructive and well-conceived alternative which deserves the support not only of the House in general but of the sponsors of the Bill in particular.

To hang is about the most determinate sentence which one can receive. It determines one's life. The principle upon which I stand is that murder, like any other crime, should henceforth have a determinate sentence. This is the background to this series of Clauses.

As my right hon. Friend the Member for Monmouth (Mr. Thorneycroft) said, today's debate raises a matter of considerable constitutional importance. I do not think that the Home Secretary recognised that it would do so, and I am certain that the hon. Member for Nelson and Colne (Mr. Sydney Silverman) did not recognise that it would produce important constitutional issues as to what is to be the sentencing policy in this country in future for all crime—not only for murder, but also for recidivists, long-term criminals and others. It is, therefore, an important matter of constitutional moment.

We are much indebted to my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) for having set out so cogently what is clearly a workable scheme which seeks to marry two of the constitutional issues. I am quite sure that there is no fundamental difference between murder and any other crime when sentencing policy is considered. If we are to abolish the death penalty, the public will want to hear from the mouths of the judges an alternative sentence which is determinate and fixed. It should be for a term of years certain. That is the first point. May I indicate straight away that it might well be a period of only six months or 12 months? Hon. Members may recall a case in Guildford in 1943 or 1944 of a man who crossed the road and found his wife with a soldier.

On a point of order. There are a number of Amendments later on the Notice Paper—and the indications are that Mr. Speaker intends to call them—dealing with the question with which the hon. Member for the Isle of Thanet (Mr. Rees-Davies) now seeks to deal. Is it in order to anticipate those Amendments on the new Clause, which does not deal at all with what the original sentence might be?

It is not in order to anticipate an Amendment likely to be called later. I hope that the hon. Member for the Isle of Thanet (Mr. Rees-Davies) will confine himself to the new Clauses.

I was merely illustrating what is the basis of the scheme, which depends, first, upon who shall determine the sentence; shall it be the judiciary or the Executive? From this we go to the fundamental purpose of the scheme. I will not take up the time of the House, and I do not intend to speak for long on this matter. Let me continue with the illustration, because it illustrates the point perfectly that a person provoked into a crime of murder by somebody's adulterous association with his wife may well properly receive a very short sentence.

That can be seen by the whole of the country; the public can see that 12 months or two years' imprisonment is given by the judge in that case. In the case of a Heath type of murderer, the judge may give a sentence of 30 years, and the public may well think that to be right. I want to see a determinate sentence given in every case initially, and it is in that spirit that I turn to the scheme proposed in the new Clause.

There is no doubt that the Home Secretary was annoyed by my right hon. Friend's opening speech because he thought that my right hon. Friend was in some way seeking to denigrate the existing work of the Home Office. I am certain that he was not doing so and that that is not the intention. The intention is to create some new thinking on sentencing policy.

If we are right that determinate sentences shall be given by the judges, the second important constitutional issue is: shall the judiciary or the Executive have the control over those sentences after they take effect? Shall they do it jointly or severally? The purpose of the plan, stripped of all details, is to say that it shall be done jointly. I fundamentally agree with that.

2.0 p.m.

But when one is considering a scheme of this sort, the Home Office must recognise that, unfortunately, the public are unable to see its workings or know what goes on. It is said that there has not been any public disquiet. I think that there is public disquiet in this particular field of murder. The disquiet arises because the public do not know how long the prisoner will serve and are not satisfied that, if he is released, he will be released in accordance with public safety.

I will give the figures. They have nothing to do with the nine years. Also, this is not a party matter. These are Home Office figures in respect of releases under Section 27 of the Prison Act, 1952. In 1964, 19 prisoners were released. It has been said that there were adequate safeguards by the Home Office. I doubt it. One person was released within the first year, one within the third year, one within the fifth year, one within the sixth year, one within the seventh year, four persons were released within the eighth year, eight within the ninth year, one was released within the tenth year and one within the fifteenth year.

In 1963, nine prisoners were released, all in ten years or under. There were one in the fourth year, one in the sixth, one in the seventh, three in the eighth, two in the ninth and one in the tenth. Is it really to be suggested that if we were to abolish the death penalty the public for one moment, if they knew that class of figure, would be prepared to agree that those who had engaged in deliberate murder should be released within periods of that nature? I do not for a moment accept that.

The reason why I support my right hon. and learned Friend's suggestion for a scheme of this nature is that I believe that we shall need a tribunal in order to be able to safeguard the views which a Home Secretary might be willing to put forward and that if there was a proper judicial tribunal, the careful sifting of the tribunal, coupled with the advice that it tendered to the Home Secretary, would give a feeling of safety in the public mind. It is for this reason that I like a scheme of this nature.

However, I meet fair and square the point of the Home Secretary regarding this question. I believe that when a sentence of 10 years or longer, as a determinate sentence, has been passed upon any serious criminal or a murderer as well, it should be subject to a review of long sentences by the Home Office and the Home Secretary in the same way as reviews take place under Section 27 in respect of life sentences only. In connection with the consideration of these cases, the persons concerned ought never to be released unless the sanction of the court or of a proposed tribunal of this nature is given.

Frankly, I prefer the court. Also, I prefer a subsequent Amendment in my

rose in his place and claimed to move, That the Question be now put.

In the circumstances, I will not now select for Division new Clauses 3 or 4. The next Amendment to be selected, therefore, is Amendment No. 4 in the name of the right hon. and learned Gentleman the Member for Warwick and Leamington (Sir J. Hobson)

I beg to move Amendment No. 4, in page 1, line 6, to leave out "guilty" and to insert "convicted".

This is a drafting point with which I can deal shortly. As I understand it, in all the criminal Statutes the sentence is usually made to depend on convictions. As the Bill stands at present I am troubled as to what might happen if a civil court were to find, on an issue of whether a man had been guilty or not, that he had been guilty of murder. This has happened. Section 1 of the Offences against the Person Act, 1861, provided that

"Whosoever shall be convicted of murder shall suffer death."

In most of the Statutes one finds that it is upon conviction of the offence that the sentence is provided. In the Homicide Act, 1957, Section 5(3), it is provided that:

"… if a person charged with capital murder is convicted thereof he shall be liable to the same punishment for the murder as heretofore".

The Children and Young Persons Act, 1933, provided sentence of death should not be passed against a person convicted of an offence who appears to be under 18.

I wondered whether draftsmanship practice had changed recently and I looked at one of the recent Statutes, the Sexual Offences Act, and I found Section 37(3) says

"… the punishments which may be imposed on conviction on indictment or on summary conviction …".

Therefore, it seemed that throughout the whole of the normal statutory provisions about punishment the practice of the courts is that sentence depends upon convictions.

There was a case recently in which a man was acquitted of murder. Years later the counsel who prosecuted him wrote in a newspaper that that man was guilty. He brought an action against that counsel and the newspaper which published the story. The defendants won the action so that the civil court had declared that the man was guilty of murder. The Bill, as I understand it, says that at the moment anyone guilty of murder should suffer a punishment which we have yet to decide. I would not like someone who had lost a civil action in those circumstances to be in peril of a sentence, and for this reason I thought it was as well to clear up the matter or find out why the Bill was in this form.

This is a purely verbal drafting Amendment, as the right hon. and learned Gentleman the Member for Warwick and Leamington has said. I recognise there is some force in it and, in support of his argument, I will draw his attention to the fact that the Long Title of the Bill uses the word "convicted" whereas Clause 1 changes it, for some reason I cannot remember, to the word "guilty". Therefore, in the interests of saving time of the House and of semantic purity, I am ready to accept the Amendment.

The next Amendment is Amendment No. 5 which I suggest might be discussed with Amendment No. 7, in page 1, line 7, at end insert:

"such term as a full Court of Criminal Appeal (including the judge who tried the case) shall in its discretion determine".

and the promoter's Amendment, Amendment No. 6, in page 1, line 7, at end insert "life".

I beg to move Amendment No. 5, in page 1, line 7, to leave out "sentenced to imprisonment for" and insert:

"liable at the discretion of the Court to imprisonment for life".

Having caught the promoter of the Bill in a frame of mind in which he is accepting Amendments so freely and having at least persuaded him to change the word "guilty" to "convicted", I hope that he will feel amenable and prefer the words set out in this Amendment. The House will recollect that at this stage of the Bill Clause 1(1) reads:

"No person shall suffer death for murder, and a person guilty of murder shall, subject to subsection (4) below, be sentenced to imprisonment for"

and then comes the hiatus which we debated during the Committee stage. What is to be put in there? What is the sensible and reasonable thing that should be put in there when this Bill will create such a great change in the criminal law, if it ever comes into law? The words to be put in suggested by my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson), or alternatively the words suggested by the promoter of the Bill, are words which reveal a great difference in principle. I hope that when the House comes to make a decision on this point right hon. and hon. Gentlemen will reflect on the effect in the change of the law which has been made by the abolition of hanging.

It is the abolition of the unique penalty which some have regarded with horror and which everyone has regarded with the greatest distaste. Some have believed it necessary and some have believed it could be abolished without real damage to society. It was nevertheless a unique penalty, and that penalty, as the Bill comes before us, is to be eradicated from our law. The effect is to bring murder out of the unique category of crime in which it stood and to place it in the ordinary hierarchy of serious crime in the criminal calendar. The killing of another human being has never been considered so unique a crime in itself as to withdraw it from the normal procedure whereby the judge, sitting in the name of the Sovereign and also in the name of society, imposes upon a convicted criminal the sentence of the court. The killing of a human being has never been considered so unique that we should take from the judge the power to administer a proper penalty and punishment. But it was only killing in certain circumstances and in certain conditions which made it into the crime of murder which imposed on the judge the duty to sentence a person to death.

There is a very narrow boundary between the crime of manslaughter for which a person has been convicted for being responsible for killing another but which did not amount to murder and the crime of murder. On one side of that narrow boundary the judges were given the power to sentence and on the other side it was taken away. How narrow that boundary is any member who has had anything to do with the practice of the law will know only too well. A person's words when the death occurred and the provocation arose, whether accepted by the jury or not, may take a killing into the category of manslaughter. A person's condition of mind may determine whether a person charged with murder should be convicted of manslaughter. Many right hon. and hon. Members will know how narrow the boundary is between the two.

It would, however, be very strange if, having abolished this unique penalty, we said that the judges should have withdrawn from them the power to determine the appropriate penalty for the offence. I see no logic or sense in saying that if we abolish capital punishment the judges should not have the power which they have in respect of manslaughter. Why is this argument presented periodically? It has been presented this morning to a certain extent. The historical position of the courts and its relationship to this House has in the past revealed the jealousies between the judiciary and the Legislature. There have been some very historic occasions when this has happened.

I was very surprised to hear, as we often hear from hon. Members opposite, the implied criticism of the judiciary. We have certainly heard it from certain quarters during the proceedings on this Bill. Some Members opposite, not in speeches, but by the noise which they occasionally made, seemed to indicate their view that the judges have no knowledge of penology or criminology and that they are the great experts about these matters and know all about them. Some hon. Members on both sides of the House know a lot about them, but I wonder how many of those whom I have heard making certain interjections have visited prisons or detention centres or have spoken to probation officers, or how much they know about after-care service except what they gleam from a superficial attitude of mind. The practice of some hon. Members opposite of interrupting as soon as mention is made of the knowledge of judges is too prevalent. I do not include my right hon. and hon. Friends who have been taking part in these debates. What may have been said in the past about the judges and their lack of knowledge of penology and criminology certainly should not be said now. Members opposite who make these interventions probably have one-tenth of the knowledge of High Court judges on these matters.

We would weaken at our peril the powers of the judiciary. I know that we in this House think that we are very important. Perhaps we are very important. But there is another side to the society in which we live. It is of the greatest importance that there should be a strong and powerful judiciary and that this House should be seen to support it. Trial by jury is one of the rights of the Englishman. He has not only the right to vote and to have elected representatives in the House of Commons. I should very much hate to see this House, by implication or by action, try to induce any weakening in the strength of the judiciary or of the historic and traditional form of English trial.

2.45 p.m.

I share some of the views of my right hon. Friend the Member for Hampstead (Mr. H. Brooke) about sentencing policy and review and parole boards. I should like to see grow up some sort of organisation to which a man who has been sentenced can make representations. Many right hon. and hon. Members, I am sure, receive letters from prisoners who wish them to make representations to the Home Secretary about their having an organisation to which they can make representations. The courts should have a say in this matter.

I know that it can be said that the Home Secretary, as the head of a great Department of State, has a duty to ensure that that Department carries out its duties efficiently, humanely and with the benefit of the greatest expertise which it can draw from that Department. The Home Secretary will recollect that when Lord Salisbury was Prime Minister and Lord Halsbury was Lord Chancellor it was believed that the Lord Chancellor could join the Home Secretary in, for instance, recommending the exercise of the prerogative of mercy. It may be that the suggestion that the Home Secretary should have this executive power which we have made today should be amended.

While anyone who has served in a Government will have the greatest respect for the great office of State of the Home Office, I cannot understand why there should be utter and complete confidence that its administration is so perfect that we can take the power of sentencing from the normal and traditional body and give it to the Home Secretary. I do not suggest that the Home Office does not perform a most important task and does not do it conscientiously. Whatever may be said, the Home Secretary is an officer of the Government who has a tremendous burden placed on him. I cannot understand why he should cling to the desire to have the power to be able to decide whether a man should serve life imprisonment or how long he should stay in prison.

Would the right hon. and learned Gentleman explain how he reconciles the view which he is putting forward with that of one who feels that for these classes of murder the sole penalty should be death?

I have expressed my view that there should be the unique penalty. Once that is removed from the Statute Book, then I say, "Very well. Murder should fall into line with the ordinary hierarchy of serious crime". I made my position very clear. The hon. and learned Member can read the HANSARD reports in which I have set out my view in respect of those cases in which hanging was the appropriate penalty for murder. I have never said that it was the appropriate penalty in a technical case of murder—for instance, a case of near-infanticide, where a wretched woman kills her child in distressing circumstances. I have never included that sort of crime in my remarks. I have said that the death penalty should be retained for certain types of murder.

So far, the will of the House' is that that shall not be so, and that being the case the sensible thing to do is to ask: what is the alternative? What is the right thing to do? Is it really sensible to provide that judges shall be able to pass sentence in cases where there is evidence of diminished responsibility, or of rude words being spoken before a blow was struck, but that if the offence comes on the other side of the line the judges should not have that power? Are we then to provide that the penalty must be imprisonment for life, with recommendations being made to the Home Office thereafter?

I cannot see the logic of that. Murder must be placed in its proper category. In a case of technical murder why should not the judge be able to say, "You shall be sent to prison for a few months", or even, "You shall be put on probation"? Why is there not enough mercy among hon. Members opposite to make them take the view that this is what should happen? It is no use their saying that in cases of technical murder the judge must award a sentence for life, which can be reviewed immediately afterwards and that, in appropriate cases, this can be followed by release. The judge should be able to say, there and then, at the trial, that the prisoner is not to be sentenced to life imprisonment and taken away to the cells. He should even be able to say, "Although this is a crime of murder, in the circumstances it does not call for imprisonment."

On the other hand, in those cases where the murder is one that horrifies everybody, the judge should be able to award imprisonment for life, in recognition of the condemnation of society, at the time of conviction. If there is any question of the prisoner's state of mind or physical condition changing afterwards, the case can be reviewed, but judges should be able to award definite sentences at the time of conviction.

Is it the view of the right hon. and learned Gentleman that the Home Secretary should have the power to release on licence in the case of a determinate sentence as well as a sentence of life imprisonment?

I do not think so. I was very attracted by some of the Amendments put down by my hon. Friends, but a point of order was raised just when I was going to put my view on them. First, I am in favour of judges awarding sentences. I am in favour of a review board having the same powers as the Home Secretary now has in respect of indeterminate sentences, and if it were found that this worked well, the system could be extended thereafter to determinate sentences. But I emphasise that in my view the judge is there to award a sentence at the moment when a person is found guilty. I believe that public opinion would be far happier if the Amendment were agreed to, so that a judge was able to award the sentence which, in his view, was appropriate. Mitigating circumstances could then be put before the judge and there would not have to be the automatic imposition of a sentence of imprisonment for life.

I hope that the Amendment will be accepted. Above all, I ask the Home Secretary to consider what disadvantages there may be if the Amendment is not accepted. I wish that he would try to disrobe himself from his office and look at it from a little distance away, so that he could see whether or not it is right for judges to have this power, rather than that we should have the strange anomaly which I suggest would be created if the Amendment were not accepted.

On a point of order. Are we now discussing two Amendments or three, Mr. Speaker? I thought that you had indicated that we were discussing Amendments Nos. 5 and 7, but that the House might wish to include Amendment No. 6. It seems to me that there is some difference between that Amendment and the other two. I should like to know what your wishes are.

I invited the wishes of the House, and hearing no discordant sound I imagined that the House had accepted the proposition to discuss all three Amendments together. It is not a matter of great importance, in respect of the time factor or anything else, and if the House is not content let us now discuss Amendments Nos. 5 and 7 together and deal with Amendment No. 6 immediately afterwards.

The general question of principle raised by all three Amendments was fully and—I should have thought—adequately discussed in Committee. It was only by a mechanical accident that the question was not decided at that time, and that the gap which is now in the Bill was not filled in as the Committee clearly wished it to be. However, that was not done, and we therefore have to decide the question again. I mention that point only to excuse—if it needs excuse—the brevity of what I have to say to the House.

With the greatest diffidence I suggest that the right hon. and learned Gentleman's Amendment is mechanically impossible. He proposes to leave out the words "sentenced to imprisonment for" and to insert the words:

"liable at the discretion of the Court to imprisonment for life."

This means that if a court chose to exercise its discretion it could sentence a convicted person to imprisonment for life.

If the court did not choose to exercise this discretion it would, under this Amendment, so far as I can see, have no power to sentence him to any imprisonment at all. So what the right hon. and learned Gentleman is recommending to the House, under the guise of giving the court a power to impose a varied, determinate sentence, is merely to take away the mandatory duty to impose a sentence of life imprisonment, and make it discretionary in such a way that, if the discretion is not exercised, the man cannot be sentenced at all. It seems to me that this is really not a very serious proposal to make to the House and that the House ought not to accept it.

There is another serious objection to it. Suppose I were mistaken in that interpretation of his Amendment—though I am afraid that in my innocence I think it is not mistaken—but if that argument were mistaken, there would be another defect in this Amendment.

Is it not a fact that the Statutes providing for maximum sentence of life imprisonment provide that the person shall be liable to imprisonment for life or liable at the discretion of the court to imprisonment for life? Is not that the usual form of words which is found throughout all our Statutes which provide for what is called the life penalty—for manslaughter, rape, burglary, piracy, and a host of other offences?

The right hon. and learned Gentleman is an ex-Attorney General and I do not pretend for a moment to compete with him in knowledge or experience of the law, but in the case of manslaughter the sentence is statutory, and by Statute the court has the power to inflict what sentence it likes, including a sentence of life imprisonment. So that the objection I am making to this Amendment does not apply in cases of manslaughter, or the other cases to which the right hon. and learned Gentleman has referred.

What I miss from this Amendment is any power in the court to inflict any sentence of imprisonment at all, except a sentence of imprisonment for life, which it makes discretionary instead of mandatory. With all respect to the right hon. and learned Gentleman, I think that it is plain nonsense.

rose—

I shall not continue with this part of the argument now. If I am wrong there will be other opportunities to argue it.

What I want to deal with is what seems to me another objection to this Amendment. If I am wrong in the interpretation I have offered of this Amendment, then the court would have power to inflict a determinate sentence of a very long term in suitable cases. I think the right hon. and learned Gentleman mentioned a possible term of 30 years. It is common ground that long sentences ought to be subject to some kind of review, and, indeed, everybody who voted for new Clause No. 2 is committed to that opinion. In the case of life imprisonment there is a statutory provision for such a review. I concede at once that many people are not satisfied with the machinery for administration of Section 27 of the Prison Act, 1952, but everybody accepts the principle.

Under the right hon. and learned Gentleman's proposal, if there were a sentence of 30 years, Section 27 of the Prison Act, 1952, would not be available, and the Home Secretary would be deprived of any power to review it at all. I am quite sure that the right hon. and learned Gentleman did not intend that. I am sure that he does not support it. I am sure he does not defend it. That, however, is the Amendment he is asking the House to accept, and I am sure the House will not be willing to accept it.

My hon. Friend the Member for Watford (Mr. Raphael Tuck) has another Amendment, No. 7, which is being discussed now, and which I simply cannot follow at all. It seems to me to mean that if a jury convicted a man of murder the judge would have no power to sentence him at all, but the matter is then referred to the Court of Criminal Appeal, and the Court of Criminal Appeal acts as the court of first instance, to determine what the penalty should be. I must say that this is not a proposal which recommends itself to me.

I do not know whether I am in order in saying something now about Amendment No. 6. If I am, I would say a word about it now.

The hon. Member is not now, because I retreated from what I thought was the agreed wish of the House. We shall get to Amendment No. 6, if it should not fall on this Amendment being adopted.

Then perhaps I can state shortly the argument in favour of it, because it might persuade hon. Members inclined to vote for Amendment No. 5 and Amendment No. 7 to vote against them in order that Amendment No. 6 shall not fall.

It seems to me that the abolitionists and rententionists are rather reversing their positions on this matter. In the days when the death penalty was mandatory on a conviction for murder, abolitionists used to say what the right hon. and learned Gentleman has been saying with great great force and eloquence, namely, that murder is not always the same crime, and that it is wrong to have a mandatory sentence which does not vary, particularly when it is a sentence of death.

The right hon. and learned Gentleman, who has always been opposed to the abolition of the death sentence anyway, is now saying that a mandatory sentence of life imprisonment is wrong, though a mandatory sentence of death used to be right. But the right hon. Gentleman is quite right. Murder is not always the same crime. It is sometimes very grave indeed, and sometimes, though grave, is not so grave as all that, so the sentence ought to be different. But what is true, and what I would advise the House not to depart from, is that murder, whether grave, or not so grave, is a crime unique, a crime in its own category, and a crime which society is bound to condemn by enacting a mandatory sentence for it, whatever happens afterwards in the administration of it.

Not all my views on this subject are widely and universally accepted, but I am sure that that view is, and it has been accepted in every previous amendment which the House has enacted in the law relating to the death penalty. It has never been suggested at any other stage in the whole of our penal history that if we do not execute a man for murder there should be a penalty other than life imprisonment. We did it in 1957. We have done it on every occasion throughout the centuries. When a death sentence has been reprieved, the substitute has always been a sentence of life imprisonment.

Is the hon. Gentleman aware that overseas, and throughout the Continental countries, where there has been abolition they have frequently provided for long and determinate sentences?

Maybe they have, but I am dealing with our practice, and not with the practice of other countries. We are responsible for our practice, and not for theirs, but it seems to me that the present position adequately deals with all the realities and all the practicalities of the situation. It imposes a life sentence automatically for this unique crime, and it gives the Home Secretary power, if he thinks fit, to deal with those sentences under Section 27 of the 1952 Act.

It is a short Section, and in case all hon. Members are not acquainted with it I shall read it. Subsection (1) says:

"The Secretary of State may at any time if he thinks fit release on licence a person serving a term of imprisonment for life subject to compliance with such conditions, if any, as the Secretary of State may from time to time determine."

This combines the necessity, as we think, of inflicting a life sentence with a power to review it.

Subsection (2) says:

"The Secretary of State may at any time by order recall to prison a person released on licence under this section, but without prejudice to the power of the Secretary of State to release him on licence again; and where any person is so recalled his licence shall cease to have effect and he shall, if at large, be deemed to be unlawfully at large."

Unless the new Clauses had commended themselves to the House, or either of them had done so, Section 27 of the 1952 Act, combined with the mandatory sentence of life imprisonment, would deal with the realities of the situation.

As the House has decisively rejected any interposition of a judicial review, this is the right way to deal with the matter. I hope that the House will so resolve.

I am a little surprised that the hon. Member for Nelson and Colne should accuse some of us of shifting our ground. I thought from the latter part of his remarks, when he dilated on the uniqueness of murder, that he was uttering sentiments to which even those of us who have been in these proceedings from the start would find new as coming from him. I do not want to pursue that point but to share the logic of my right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson) on what we are trying to do by this Amendment.

One of the criticisms of the old law was its illogicality. If we pass the Bill as it stands we shall perpetuate that. One of the criticisms always levelled against the old law was on its inflexibility and rigidity with its insistence that regardless of the offence on the judge should be imposed the task of going through a macabre routine. It is true that the routine in every case will now have lost some of its macabre content, but it will remain a routine.

I listened to everything that the hon. Member said, but I still cannot follow on what particular consideration he suggests the court should not have discretion. What discretion is left when we say that in these particular instances it should not have discretion? With the going of the unique penalty it seems that there is nothing left which is unique.

There seems to be a much more serious point, which the hon. Member did not touch upon. What force will the life sentence have as a deterrent if it is to be given indiscriminately? The hon. Member addressed himself to this Amendment in the sense that some of us might be seeking to give the court discretion to impose a higher sentence, a longer term of years than life imprisonment is generally held to convey. That is not in my mind. I wish to give the court discretion on occasion to give a low sentence, or something less than a life sentence.

Where is the majesty left in the law in respect of this particular sentence if the life sentence is to be given on every occasion regardless of the circumstances? Where is the deterrent if a great number understand that after a life sentence is imposed the convicted person may be released within a very few months? This seems exactly contrary to what we are trying to do.

We have here inflexibility, and the very criticisms levelled against the old automatic punishment by failure to provide the deterrent which we should provide. This was precisely what many of us feared at the beginning of discussions on the Bill when those of us who are retentionists could see clearly that when the main issue was lost nothing adequate would be put in its place. That is why I strongly support this Amendment.

I entirely disagree with the speech of the right hon. Member for Ashford (Mr. Deedes). I should have thought that flexibility is allowed for in this arrangement because the Home Secretary has the right to review sentences. I should have thought that if this were left to the judges they have not the right materials on which to act, or not in all cases. The right hon. Gentleman looks surprised. I have had experience of prosecuting and defending in many cases. In certain circumstances, all the evidence that ought to come out and which ought to be known on sentencing is not available to a judge.

Take, for example, the case where defence counsel is faced with this alternative. Either he puts forward the defence of provocation or of diminished responsibility, or both. He may decide for tactical reasons, or because of express instructions from his client, only to put forward one of them. The man, never- theless, is found guilty and the judge passes sentence on the information that has been made available to him. It may be that the facts which would give rise to the other defence, which is discarded for tactical reasons or on express instructions, are very pertinent on the question of how long the sentence should be.

Such information becomes available to the Home Secretary, in practice, very often through medical reports. In the old days, medical reports available at trial included what the prisoner had said to the prison doctor. Very often the prisoner had made statements when he was having medical tests. He may have had quite a lot of alcohol to drink in order to have an electroencephalogram to test his mental state, and while he had had this drink he may have said things to the prison doctor which were very pertinent to his state of mind and his reasons and motive for the murder. These things are no longer included in medical reports, but they must become available at a later stage to the Home Secretary when he is considering how long a life sentence should be.

Is not that so in the case of other serious crimes?

I would be entirely in favour of the type of reform suggested this morning by the right hon. Member for Hampstead (Mr. Brooke), namely, that there should be at some stage of our development a type of parole board to reconsider long-term sentences in the light of other information. However, at present, this is the best practical solution. It has worked very well.

Those who support the Amendment seek a kind of circumventing of the Home Secretary's right to review these sentences. All those who have had practical experience of this would agree that they have appeared in cases where they have thought that the life sentence should be very short and also that they have appeared in cases where they have thought that the life sentence should be very long. The matter is best determined by the Home Secretary in an informal way by what is essentially an administrative process. The law of murder, because murder is a unique crime, is in many ways, because of our development, in a unique position today. It is the forerunner of reforms which we need and it is the right of the Home Secretary to review sentences of this kind.

I would be against leaving to the discretion of the judges whether there should be a life sentence. It should be mandatory. It should be within the discretion of the Home Secretary to review it in the way that he does at present.

I want to say a few words in support of what has been said by the hon. and learned Member for Montgomery (Mr. Hooson). First, the procedure for life imprisonment seems to me to be precisely that form of experiment in the indeterminate sentence which was referred to earlier in the debate and which will be of great value. Secondly, viewing the matter in that way, I am unable to understand what has changed since the Homicide Act, 1957, which we have been told withdrew from the category of capital murder seven-eights of all murders committed. If it is right today that there should be a variable sentence at the discretion of the court, it was even more right then, because what is being done now is to withdraw only one-eighth of all murders, and those the most heinous murders; in other words, those murders which are less likely to command a comparatively low sentence.

Does the hon. and learned Gentleman join with some of his hon. Friends in believing in law reform or not?

What I ask is—and I hope that someone will answer the question—what has changed since 1957 to make what was then wrong right today? That is a question which has not been answered by the right hon. and learned Gentleman. If we are to have an answer to that question I shall certainly listen to it. As things stand today, we are concerned with a very small number of what are regarded as particularly heinous murders and, therefore, the very murders that are unlikely to command the very low sentences which have been referred to by the right hon. Member for Ashford (Mr. Deedes).

What has changed is that in 1957 the great controversy of principle was whether, for the first time, there should be an inroad into capital punishment for murder. There was very little looking forward to see what the result would be. What we are doing now is to decide whether all capital punishment should be abolished, and now for the first time we are devoting our minds, with the experience of the intervening eight years, to what the new situation would be.

Further to that, there has been appointed the Royal Commission which considers this matter in a far wider context. If it is to consider it in a far wider context I shall be delighted to see what the answer is, but in the context of murder alone the fact remains that nothing has changed since 1957 which would justify this change in the law.

We have to have regard to public opinion. The right hon. and learned Gentleman advanced public opinion as a ground for supporting his Amendment. The fact is that the public would be much more likely to support the changes that we are making in the Bill as a whole if the categorical sentence of life imprisonment were retained for all murders as it now is for seven-eighths of murders. What we do in the future when there has been a general review of the penal system is an entirely different matter.

For those reasons, I oppose the Amendment.

I have not intervened in any of these debates on the death penalty, either on this occasion or on other occasions during the 14 years that I have been in this House, because I have been troubled and doubtful about this difficult subject. One of my objections to the death penalty was its automatic nature. I have always been convinced that the death penalty would have been much more tolerable and supportable if it had not been automatic and if the judge had been given a discretion, or perhaps if a panel of perhaps three judges, rather on the lines suggested by the hon. Member for Watford (Mr. Raphael Tuck) in a different connection, had had that duty. In fact, it would perhaps be too great a burden to have put upon a single judge, to give him a discretion as to whether the death sentence should be imposed or not. But that day seems to be past.

What I cannot understand is why I should now be expected to swallow in the form of an automatic life sentence something that I regarded as so objectionable then. Automatic sentences are always objectionable, and usually wrong. What is the reason for an automatic sentence? It is because one does not trust the tribunal to give as much of a sentence as one would like. Where a minimum penalty is prescribed in a statute it is because Parliament, for some reason or other, does not trust the tribunal to be as harsh as it wishes it to be. That is originally why death was a mandatory penalty for murder.

Do we really say nowadays that we cannot trust the judges to give the right term of imprisonment when the death penalty is abolished? This seems to me to be a wrong view to go out from this House. It seems to me that for murder, as for anything else, now that there is no question of the death penalty, judges can perfectly well grade their punishments as they grade them for other serious crimes.

The reasoning of the hon. Member for Nelson and Colne (Mr. Sydney Silverman) seems inadequate. He says, "They can always be released". He says that we can give them the maximum and then release them when we feel it right to do so. Irrespective of the quality of their crime at the time when the crime was committed, irrespective of the degree of provocation, irrespective of anything else, one nevertheless slaps on the maximum and then, from bounty, from Grace, one subsequently reduces it.

The hon. and learned Gentleman realises, I am sure, that the great difficulty—and this has been advanced by retentionists against the whole principle of abolishing the death penalty—is that when a man has committed murder he may commit murder again. In order to determine that question—and the question of release on licence must depend on that other question—there are two factors, not one, to be borne in mind.

One is certainly the nature of the original crime, which the trial judge is perfectly capable of assessing. But the other and much more important factor is what happens to the man in the course of the years, which is something that the trial judge, not being omniscient, can never know. That is why, surely, it is safer to sentence a man to life imprisonment knowing that if he ever satisfies the conditions on which he could be released, the Home Secretary has power to release him. It is very difficult to see what is wrong with that position.

The trouble with that argument is that it proves too much. It proves that one should give a life or an indeterminate sentence for all serious crimes of violence whether they result in death or not. It is the argument for the indeterminate sentence so ably advanced by the hon. and learned Member for Montgomery (Mr. Hooson), but it is one that is not before us now, nor is it likely to be before us for a very long time. We have to deal with the structure of sentencing by the criminal courts as it is today, and as it is likely to be for many years ahead. I say that this Amendment fits into that pattern far more logically—and, I think, far more humanely—than an attempt to start indeterminate sentencing now.

It is right that a judge should give a life sentence if he thought that there was any danger of the man committing a second murder. I have no doubt that he would do so, and that public opinion would demand it. Judges are sensitive to public opinion in these matters, but public opinion works both ways. One of the great reasons advanced by the hon. Member for Nelson and Colne over the years for promoting his Bill is that public opinion would not stand the sight of the black-capped judge condemning to death a woman whom everyone knew would be reprieved. Why should public opinion now stand to see a man or a woman condemned to a sentence of life imprisonment that the public know perfectly well he or she will not serve?

If the hon. Gentleman asks, "Why did you not say that in 1957?" the answer is that we were wrong then and are right now, and why can we not have the manhood to admit it? I am quite sure that in the present structure of sentencing this Amendment is correct. I remember from my own experience many occasions on which it was quite clear that a sentence of one or two years would have been imposed for some actions which were charged as murders.

I know perfectly well that it is virtually impossible for the Home Secretary to let people out under four or five years at the minimum, because there are political consequences in exercising the power of mercy which would not arise with a judge, and which would not put him under any pressure. There are men and women in prison today who, if this discretionary sentencing power had been with the courts, would not be in prison now, because they would have had a sentence of one, two or three years.

As a result of either a capital sentence in the old days which has been commuted by the prerogative of mercy or as a result of the 1957 Act, these wretched men and women have to stay in prison far longer than I believe they should. For that reason, I think that of all the debates I have listened to on the Bill—I have listened to a great many, although I have not taken part in them—I feel strongest about this, because I am sure that this proposal is on the side of humanity and public opinion and that without it the Bill will be a bigger blot than it is already.

I want briefly to comment on the new Clause which stands in my name and my reason for having put it forward. First, I associate myself with the remarks of the right hon. and learned Member for Epsom (Sir P. Rawlinson) and the hon. and learned Member for Southport (Mr. Percival), although I add one correction: when I said that I did not think that the judges had much knowledge of criminology as far as their reviewing powers were concerned years later, that did not mean that I do not believe that they are the proper authority for sentencing men convicted of murder. They sentence men for rape or, for fraud or for manslaughter. Why should they not sentence men for the extreme crime of all? Why should they be "rubber stamped"? Why should an unfortunate woman who has murdered her imbecile child be put in prison for life and have to stay in agony until the Home Secretary releases her?

The hon. and learned Member for Darwen (Mr. Fletcher-Cooke) mentioned the judge's recommendation. I agree with him. The reason I put down the new Clause is that, while there is a provision for appeal to the Court of Criminal Appeal if the sentence is too heavy, there is no provision for the Court of Criminal Appeal to be approached if the sentence is too light. It may be that a judge in his compassion sentences to too light a sentence a man who is likely to commit murder again.

As I said on Second Reading, I am concerned with the security of the people, and I feel that it would be far safer to give a full Court of Criminal Appeal the power to sentence, so that too light a sentence would not be passed. If there were provision for appeal to the Court of Criminal Appeal on the ground of too light a sentence, I should agree with the terms of the Amendment. As it is, I feel that the Court of Criminal Appeal in its wisdom would preserve the security of our people by passing a heavy enough sentence on murderers who might be likely to murder again.

It is a great pleasure to hear speeches made by two members of the Government apart from the Sponsor of the Bill and to hear them not giving in to the muttered threats of the hon. and learned Member for Northampton (Mr. Paget), who seems so anxious to keep them quiet. It would have been better had we had a free vote on this very important matter instead of having a Whip imposed, with everybody being pestered for pairs in the last few days—especially those who voted against the Bill on Second Reading. It is sad when a matter of this importance to the public has been introduced into the House in such a thoroughly underhanded manner and dealt with in an underhanded manner right the way through its various stages.

We have to find a substitute for the deterrent of the death penalty which, in the minds of some of us on this side of the House, has deterred many people from committing murders which they might otherwise might have committed. It is astonishing to me that the value of the death penalty as a deterrent has been written off by the Home Office, as if it were non-existent. This is the same Government who are advising people not to smoke for fear of getting lung cancer, who are urging us to keep death off the roads and is warning people to take care when they are driving. I would have expected them to accept that the loss of life is something which people wish to avoid. However, this is a matter which applies now, and we have to find a substitute for the deterrent. I will leave that there, Mr. Deputy-Speaker; I notice that you are becoming restless. [Interruption.] I hear "Tut-tutting" from the other side of the House. Hon. Members must not be so sensitive.

If we are now to find a substitute for the death sentence, we must not only be satisfied that we are doing what my right hon. and hon. Friends have been trying to do, which is to ensure that there is no inhumanity in the treatment of prisoners. We also have to be certain that there is a deterrent so that people involved in crimes of violence feel that it is not worth going so far as to kill the person upon whom they come in the course of their crime.

The difficulty in which I find myself is that, while I wish to associate myself with views expressed on this matter on the other side of the House, I still ask myself how it can be possible to accept the status quo which is desired by the sponsor of the Bill when the status quo has in recent experience resulted in murderers serving a much shorter sentence than persons who have merely been committing other violent crimes.

This is the crux of the matter. If we accept a position in which in the end a criminal might just as well kill the policeman or anyone else who may apprehend him and we encourage him to do that to avoid capture, we have failed to maintain law and order. I want to see a system in the Bill whereby a person contemplating murder, generally speaking—particularly violent murder—knows that if he commits it he will serve a longer sentence than if he were merely to commit his other crime.

That is why I see great sense in the Amendment moved by my right hon. and learned Friend. He is saying that the sentence should be decided by the court. What is wrong with the status quo which the sponsor of the Bill would like to see maintained is that on one side one has the Executive exercising its discretion in releasing murderers on licence, and on the other side one has the courts sentencing people for other crimes to a fixed term of imprisonment. It seems to me that the obvious answer is that if all sentences were left to the courts as suggested in the Amendment, the courts would see to it that murder, generally speaking, carried a higher penalty than the lesser crimes and we should retain this relative deterrent which is the crux of the Bill.

I will mention a case about which I heard a year or two ago. A youth went out to rob a warehouse. He was interrupted by an elderly nightwatchman whom he coshed and made insensible. Having done so, he hesitated for a moment and then decided, being under 21 and knowing that he could not hang at that time even, that, rather than risk the man coming to and discovering him in his crime, he would deal with him completely. So he opened the gates of a lift shaft and pushed the man down the shaft, and the man died.

The youth's defending counsel, talking to him afterwards, said "You do not want to be branded as a murderer, do you? Surely that is something that you would prefer to avoid. I think that we might get away with a charge of manslaughter if you pleaded guilty to it on the basis that there was a scuffle during which the man fell down the lift shaft." The youth replied at once "No. If I go for manslaughter I shall end up with a much longer term of imprisonment, for if I get a life sentence for murder I shall be out in nine or 10 years' time."

What is wrong with the present system is that there is a general acceptance of the fact that, because the Executive deals with these cases instead of the courts, in the end the murderer stands a good chance of getting a shorter sentence than a person who is convicted of other crimes of lesser seriousness. Therefore, I warmly support the Amendment and hope that the Home will pass it.

I hope that we shall not conclude the debate on these important Amendments without having the Home Secretary's views. I have felt throughout these discussions that perhaps the most important and responsible task we have is to consider the question of the alternative to the death penalty in cases of murder.

The hon. Member for Nelson and Colne (Mr. Sydney Silverman) made one of the most remarkable interventions I have heard from him during the proceedings on the Bill. It was very odd of him to say that abolitionists and retentionists were changing places in view of the fact that he went on to make a passionate plea that murder was a unique crime which needed a unique and mandatory sentence.

I do not know whether the argument comes oddly from me or not, but it is one that I have advanced from the beginning of this controversy many years ago and which I have put on every suitable occasion when I have taken part in any of these debates.

I am not attempting to deride the hon. Gentleman. I was about to say that it is not a bad thing that, at this stage of the Bill, all of us should try to approach the matter in the new situation which is emerging. It is the right and proper responsibility of the House of Commons so to do. The fact that an hon. Member has argued the retentionist case, for example, is no reason why he should not now address his mind seriously and anew to what we are to do if the death sentence is abolished. That is what we all should do, and not in some predetermined way.

The hon. Member for Watford (Mr. Raphael Tuck), whether one agrees in detail with his Amendment No. 7 or not, is obviously arguing that we have to look afresh at what sentences should be imposed and who should be responsible for imposing them. The judiciary is having rather a rough ride in our deliberations today. The public has a remarkable and well founded faith in Her Majesty's judges and in their capacity and wisdom to impose the right sentences.

Her Majesty's judges are not men who are anxious only to deter. They are not ignorant of the principles of penology. They have spent a great deal of their lives studying with the greatest care the question of criminal reform and of how to deal with criminals. Increasingly, these matters are debated in any kind of forum, as those who have had any association with the work will know. They are matters in which Her Majesty's judges take an immense interest.

I deplore the attitude of mind which attempts to treat this subject as though we in the House of Commons or those in the Home Office have a monopoly of knowledge of how to deal with matters of this character. That is not my view. Nor is it the view of the public. The public will be increasingly concerned if we tend to shut out the judges from their proper responsibility in matters of this kind.

3.45 p.m.

There is always an argument against having a determinate sentence. Oddly enough, it was kicked out of the hon. Member for Nelson and Colne, if I may put it that way, only very late, in an intervention in the course of the speech of my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke).

rose—

Let me say what it was. We have plenty of time. Let me finish what I was saying and then I shall give way to the hon. Gentleman, as I always do.

There is an argument, which emerged only late in our discussions. Murder is a serious crime and at some point after any sentence has been given the Home Secretary of the day will have a very difficult decision, whether he consults the judges or how he does it, as to whether he can, with safety to the public, release a prisoner. This is a grave decision and the argument for the indeterminate sentence—and it is not an argument which I dismiss at all lightly, and I say that with clarity to the Home Secretary and my hon. Friends—and against extending the power of the judges to impose determinate sentences is that when a determinate sentence runs out, the Home Secretary's power runs out with it, so that the Home Secretary is no longer able to say that in the interests of the public it might be safer to keep a man in custody.

That is the only substantial argument against these Amendments which I have heard. That is why I particularly ask the Home Secretary to intervene in these discussions, because I would like the case to be deployed and developed seriously, not only so that we in the House can hear and understand, but so that the public can.

I intervene only to say that the right hon. Gentleman is mistaken when he says that I made this argument, the seriousness of which he accepts, in an intervention just now. If he would pay me the compliment of re-reading my speech of Second Reading, and heaven forbid that he should, he will find that I set out this argument, perhaps at inordinate length, at that time.

At whatever inordinate length the hon. Gentleman set out the argument on another occasion, in a debate directed to this specific issue on the Report stage of the Bill it is fair to point out that we had to wait a long time before we got round to the only relevant point in it. The hon. Gentleman must not be too sensitive. I am not seeking to make too much of it, but I am simply agreeing that it is an important matter. Of course, I will listen to what the Home Secretary has to say, as I am sure the whole House will, because this is a grave and important issue.

I say in advance—because we cannot go on talking to one another for ever and one speech at a time is sufficient—that my difficulty about that argument is the same as that found by my hon. and learned Friend the Member for Darwen. It seems to prove too much. If that type of argument is to be adopted for murder, it probably ought to be accepted in many other cases, too, certainly in all cases of violence. There is also increasingly the difficulty that there will clearly be exceptions. I do not want to state them, because the difficulty about stating exceptions in advance is that one tends to be caught in the position of apparently saying that certain types of murder do not matter. All types of murder matter. It is always a very grave offence, even in the most extenuating circumstances.

Nevertheless, all of us who have had any experience of these matters have known of cases and have seen cases in court when it has been perfectly obvious that something far less than the maximum penalty will be exacted. This was true in the days when the death penalty had to be imposed—and it will be true in these circumstances—when a judge was compelled to declare, with all the solemnity of a great court of justice, a sentence which he knew perfectly well to be utterly meaningless and which would never be put into operation.

That is something which tends to degrade the law and it is wrong to have to do it. If we were wrong to maintain it before, we are right to change it now. The House ought not to suffer any embarrassment about occasionally changing its mind. We would have never have any progress unless we were prepared to look afresh at certain matters.

Finally, one is impressed by the fact that the dividing line between murder, for which the sentence is left vague without any proposal to insert a life sentence and which would get an indeterminate sentence, and manslaughter, which may get a determinate sentence, is appallingly narrow. One thinks of the ordinary argument which takes place in so many of these cases which is often an argument about provocation and about precisely what words were said and about the sort of emotional atmosphere in which the act took place.

If it can be shown that the provocation was sufficient then it slips over into the area of manslaughter and a determinate sentence should be imposed. But if the provocation was insufficient and the case, on any ordinary terms is more serious and goes into murder, then the indeterminate sentence is imposed. which may in many cases mean a lesser time in gaol. It is often regarded as such.

There is the other point which my right hon. Friend the Member for Monmouth (Mr. Thorneycroft) has not yet made which goes with it, that there is the complete suspense forever of the person who has not received a determinate sentence. It is complementary to the other factor.

I accept that.

In these circumstances, I ask that the Home Secretary should think carefully and give us his considered opinion on this matter. I am assuming for the purposes of this argument that the death penalty is abolished. This is the purpose for which we are proceeding. We have got beyond that point and I think it is a rather good thing that we have. These are matters which are not of the same moral issue as whether a person is hanged or not.

These matters concern the interests and the protection of the public, and the right treatment of prisoners. They are of very great importance on their own. They are central to the responsibilities of the Home Office and before we vote upon this I would like to have the Home Secretary's considered views, so that we may come to a wise and correct decision.

I can put my own view quite shortly, because it has already been anticipated by my hon. Friend the Member for Nelson and Colne (Mr. Sydney Silverman). First, I have been privileged to know the judges for nearly 40 years and I have the highest conceivable regard for them. Secondly, murder is still the most terrible crime in the calendar. Life sentence is appropriate for it and those who have been sentenced to life should be treated with mercy. Who should decide what mercy requires? It seems to me it is better that the Home Secretary should do that rather than the trial court. What are the grounds upon which mercy might be extended?

A man might have killed his wife and it may be difficult for the court to be fully informed of the years of distressing domestic strife which may have provoked him almost beyond endurance. He may commit a murder in the course of theft, or robbery, or something of the sort. His claim for mercy may be that he has had a distressing upbringing as a youth, and that he has been unbalanced and unused to taking decisions ever since. It is better, I think, for that to be assessed by a Home Secretary who has before him the fullest account, which he can quietly supplement as much as he wants and from whichever source he chooses, as to the man's upbringing. He can go into private distresses which it is difficult to explore fully in the atmosphere of the trial court.

It seems to me, in those circumstances, that if one is trying to evaluate the crime and to evaluate those circumstances which should incline the scales of mercy in favour of the prisoner, then it is better that it should be done when everything is before the officer of the Government, the Home Secretary, or whoever is the person to exercise the discretion, than that it should be done when the prisoner is sentenced and when, in the very nature of things, it is almost impossible for the court to be as fully informed as can a Home Secretary who one, two, three or four or five years later, when the prisoner's dilemma is passed. The Home Secretary can be told about his reaction to detention, and his reaction to his fellow prisoners, to the prison officers and to the whole atmosphere of incarceration. All these can be actively and fully assessed.

As I have said, murder is the most terrible crime. The deliberate taking of life should be visited by the most severe punishment which the law permits. Then comes the time for mercy, and the person who decides as to the degree of mercy which should be extended to an individual person should be the Home Secretary, with the full means of knowledge which he has at his disposal.

I do not think that the Home Secretary has appreciated to the full the point which my right hon. Friend the Member for Monmouth (Mr. Thorneycroft) made. Hanging is a completely determinate sentence. For years past, prior to 1957, there was built up the situation that instead of the internative of life imprisonment one was detained during His Majesty's pleasure. The sentence of being detained in this way arose from the then state of the law. In 1957, we altered the law of provocation, abolished the doctrine of constructive malice and made a a number of changes in the law. But in theory, at least, we had the determinate sentence of hanging, the alternative being detained during Her Majesty's pleasure, which was usually applied in cases in which a person was suffering from some mental abnormality.

My right hon. Friend pointed out quite distinctly that the dividing line between manslaughter and murder is very narrow. Let me give one example. I was closely concerned with the recommendation for the introduction into this country of the Scottish doctrine of the law of diminished responsibility. As we well know, this dividing line is very narrow between a case in which a person is guilty of manslaughter but has diminished responsibility and a case in which a man is guilty of murder.

How can it be contended that a person who is found guilty of murder shall never know how long his sentence will be? The whole penal doctrine of this country is that the accused shall know what his state will be and for how long he will have to suffer that fate. Being detained during Her Majesty's pleasure is contrary to all the accepted precedents of our penal law. I see no reason why we should seek to distinguish between manslaughter and murder in this way. I therefore come down firmly on the side of a determinate sentence. That sentence must clearly be on the long side.

rose in his place and claimed to move, That the Question be now put; but Mr. SPEAKER withheld his assert and declined then to put that Question.

It seems quite clear that if we continue with the determinate sentence, it should provide for a long sentence, which may well be 20 or 30 years—

First of all, I thank the Joint Under-Secretary of State for the Home Department for being in his place to answer some questions about civil defence which have been raised with me by constituents and of which I have given him long and precise notice.

As I have given him notice, I hope that the House will forgive me if I fire these questions off fairly quickly, largely in the form in which they have been put to me. After putting the questions I shall content myself with a brief indication of the kind of answers I hope that the hon. Member will give the House and a brief statement of the background against which I am initiating this debate.

The questions are as follows: what civil defence area and sub-area does the Borough of Ilford, as it was—the Borough of Redbridge as it is now—come into? Is the borough a dispersal area? If so, where are the people going? How will they get there? What preparations for transport have been made? How long is the journey expected to take? What measures have been taken to feed the population? Assuming that the borough is a dispersal area, what assurance is there that the same state of affairs will not arise as that which arose between Westminster and Crawley? Some of my constituents allege that Westminster is a dispersal area and that the people of Westminster will be evacuated to Crawley, but that the Crawley Council has passed a resolution saying that it does not want to receive evacuees from Westminster.

Why is it assumed that the reception area is safer? On what assumption about the strength or kind of nuclear attack are the civil defence plans based—that is to say, how many weapons are being used against us, and of what kind? What are the assumptions based upon? Which Regional Seat of Government is responsible for the Borough of Redbridge? How will communications be kept up? Is it true that the results of two civil defence exercises—"Parapluie" and "Fallex 62" —and recent N.A.T.O. exercises proved that nuclear war would result in 15 million killed, three-quarters of the police force killed, hospitals being disrupted, and complete chaos that civil defence would be totally unable to deal with?

To what extent is civil defence in existence for the furtherance of military government after a nuclear war? Are there any underground installations connected with civil defence in the County of Essex? If so, where are they and what is their purpose? What is the connection between the police, the Terri-torial Army and civil defence? Is it true that London is to be sealed off in the event of nuclear attack, and that only official traffic will be allowed in or out?

The House will know that those were the stock questions of the Committee of 100 or the Campaign for Nuclear Disarmament, and although they have become a little flyblown since Vietnam has become the fashionable focus for protest I ask the hon. Gentleman to answer these questions on behalf of the Government for the following reasons. A number of people who attended a public meeting which I held in my constituency during the General Election read out these questions, or similar ones, and the general body of the audience at question time seemed to receive them with the utmost boredom and impatience.

On questioning the questioners it transpired that none were constituents of mine, and when I asked the rest of the audience, who were constituents of mine, for a show of hands of those who wanted me to deal with these questions, not one hand went up. The House may think I should have left it there. The overwhelming majority of my constituents, who regard the Committee of 100 and the Campaign for Nuclear Disarmament with something short of interest or respect, would think so, too, undoubtedly. I can understand that view, but I do not agreed with it.

It may well be that the antics of these people, who frequently in my borough disgrace themselves by unseemly antics in the council chamber—they rush, yelling, out of the public gallery and swarm on to the floor—are really no more than a disguise for paranoia and neurosis. It is certainly the case that one of the ringleaders of these activities, one of those who questioned me at that public meeting to which I have referred, had shortly beforehand committed a very serious criminal offence, breaking into the local civil defence centre, and that he was untruthful about it in court in order to evade the consequences, and then pleaded that he was under psychiatric treatment.

It may well be that the local education authority is mistaken, as some of my constituents think, in being lenient and continuing to employ one of this gang to teach young children and influence the formation of their characters.

Though that may well be, I think that any Member of this House ought to err on the side of charitableness and patience, and that any question put to him by any constituent, however unrepresentative of the generality he may be, should receive his earnest consideration.

I therefore said at this meeting that though I would not then impose upon the patience of those present at the time, if any constituent of mine, if I were elected—as I subsequently was—put these questions to me after the election, I would, in turn, put them to the Government of the day, whatever Government it might be, and then hold a public meeting in my constituency and make the answers known, along with any comments I might have upon them. And that is what I am now doing, and what I shall do.

I am bound to say this, that I very much doubt whether the hon. Gentleman will give me the sort of answers which will satisfy those people any more than those people are satisfied with the Foreign Secretary's anti-Communist stand at the Oxford Union the other day. I believe that the hon. Gentleman, whom we all greatly respect—and I repeat, we are grateful to him for being here—will give me substantially the answers which his Tory predecessors would have given. I doubt whether the comments I shall make in due course in my constituency will be unfavourable to the hon. Gentleman or to the Government of which he is a member, though I feel obliged to observe that the right hon. Gentleman the Member for Nuneaton (Mr. Cousins) and the right hon. Gentleman the Member for Rossendale (Mr. Greenwood) are not in their places for this debate, and that the only C.N.D. supporter among the Labour Party who has bothered to turn up is the hon. Member for Putney (Mr. Hugh Jenkins).

If the hon. Gentleman will excuse me, he will, perhaps, permit me to observe that I seem to recall an occasion some years ago when I was accompanied on a march by the hon. Gentleman who will be replying to him.

Well, I call that a very fast ball, but it is not for me to act as umpire in this. I do not want to embarrass the hon. Gentleman. I do not want to embarrass the Government about their defence policy. They are learning a lot, and very rapidly. Still less do I want to embarrass the hon. Gentleman. I would rather congratulate him in advance.

I should just like to say, in conclusion, that the real answer to these people—whom I believe to be grievously wrong, but many of whom, I believe, are fundamentally gentle and decent people, and many of them very, very young—is that if they think they are right and that the Government's defence policy is wrong, and that, with reference to civil defence, their borough council is carrying out a wrong policy in a wrong way, then they have a clear and simple duty. They should stand for the council; they should stand for Parliament. Let them put up their own candidates. If these people disagree with me, as I am sure they will, and if they disagree with the hon. Gentleman and the Labour Government for whom he speaks, as I am equally sure they will, then that is the only honest way in which they can make their disagreement effective. After all, I have over the years got used in my constituency to being told by these people how many of my constituents really support them in their hearts, how many of my constituents really yearn to follow their lead, how passionate and self-sacrificing are the supporters of the C.N.D., the Committee of 100, and the so-called peace movements which continually shower us with these sanctimonious observations. I now say to them that the ballot is secret. Let them give this massive public opinion which they claim is on their side a chance to express itself. Even a Parliamentary candidature costs only £150. Surely these dedicated souls can muster 300 people out of the 67,000 electors in Ilford, North, who think that their policy is important enough to back with 10s. a head. After all, that is only the cost of a pint of beer and a couple of packets of cigarettes. And if they are sure that they are so widely supported, they will not lose their deposits, it will merely be a loan of 10s.

I wonder whether all this C.N.D. protestation is really utterly "phoney"—now about one thing, now about another, civil defence today, Polaris yesterday, Vietnam tomorrow. I wonder whether it is just second-hand Left-wing opportunitism, claptrap, just

"a tale,Told by an idiot full of sound and fury, signifying nothing."

I am prepared to give my C.N.D. constituents the benefit of the doubt, and, so far as I am a Member of the House, I am at their service, whether they are "phoney" or genuine, or whether they are tools of the Left or are speaking for themselves. I represent them in this House, and I have a duty to them. But if, when it comes to it, when the issues of policy are next put to the test, in borough elections or parliamentary elections, they do not put up candidates of their own, they will deserve the indifference which they get from most people.

Before the Joint Under-Secretary of State gives approximately the same reply as his Tory predecessor would have given to the debate, may I say a word which, I think, may be of some comfort to him.

If the unilateralists whom my hon. Friend the Member for Ilford, North (Mr. Iremonger) has castigated were ever, which heaven forbid, to get their own way in this country, the consequences would not be that civil defence could be abolished. It would remain as necessary as before, and perhaps even more so, so the hon. Gentleman need have no qualms about being simultaneously a supporter of nuclear disarmament, which I am myself, and holding responsibility for civil defence.

But I share with my hon. Friend a feeling of regret that so many members of the Campaign for Nuclear Disarmament, who are vocal outside the House, do not, with the exception of the hon. Member for Putney (Mr. Hugh Jenkins), attend our debates, and I particularly regret the absence of the Secretary of State for the Colonies, the Minister of Technology, and the Minister of Overseas Development; but perhaps the hon. Gentleman does not share that view.

The hon. Member for Ilford, North (Mr. Iremonger) gave me long and adequate notice of the points which he proposed to raise this afternoon. He and his hon. Friend the Member for Oxford (Mr. Woodhouse), my predecessor in this office, have drawn attention to the absence of some of my right hon. Friends. I think it only fair to say that an Adjournment debate last thing on a Friday afternoon does not usually command a larger attendance than we have at the moment. In fact, it is about 100 per cent. larger than it usually is.

If it had not been for the hon. Gentleman's right hon. Friends' prolonged filibustering in the debate on the Committee stage of the Consolidated Fund Bill we would have had it then, when they would have been able to be present.

It did not work out that way, and I have the responsibility of answering the hon. Gentleman this afternoon in the absence of my right hon. Friend. I, of course, have the privilege of speaking for the Government on this occasion. I do not want to disappoint the hon. Member for Oxford but this is going to be a slightly different reply from that which would have been made by my predecessor.

I listened with very great interest and concern to the questions and remarks made by the hon. Member for Ilford, North. Perhaps he will forgive me saying in passing that although he said he felt it was his duty to represent or speak for his questioners who were members of the C.N.D. and other people, there are different ways of speaking for people and the hon. Member chose one way this afternoon. One of the great things about our democracy is that people who hold vastly different views from the great majority are free to express them and it is a good thing that an hon. Member will advance their questions here even though he does not share their convictions.

I begin by paying a tribute to the tens of thousands of volunteers who give so much time and enthusiasm to the work of civil defence. We are indebted to them for their devotion to duty. They give their leisure in a day when voluntary service is at a discount and they give it in aid of what is essentially a humanitarian service. They give it according to their convictions that they can best serve the community in this way. I must say straight away that I am not able to give specific answers to the points which the hon. Member has raised. I dislike so much having to come to this Box and not be able to give a full reply to any hon. Member who questions me, but there are very good reasons why today I am not in a position to be able to tell the House the answers to the questions.

In paragraph 200 of the White Paper, "Statement on the Defence Estimates, 1965", the Government made quite clear their policy in the following words:

"The form of our Civil Defence preparations in the years ahead is being reviewed in the light of the general reconsideration of defence".

This review is under way. It is not yet possible for me to tell the House when it will be completed and when the Government will be able to take and announce decisions about the form of future civil defence policy. That being so, I have no option but to reserve the Government's position on all major issues of Civil Defence and, in particular, on the interesting questions which the hon. Member raised this afternoon.

In paragraphs 201–211 of the White Paper the Government set out a factual account of the country's civil defence preparations as they are at present. What the review is concerned with is whether preparations should in the future continue on broadly the same lines or whether there should be a change in their form and, if so, what their new form should be. The strategic background to the home defence review is set out in paragraphs 9 to 12 of the White Paper, which many hon. Members will have read. It is here that the Government stated that the likelihood of a nuclear war between the Soviet and Western alliances has been much reduced, but that there is nevertheless always the risk of war arising out of misunderstanding or miscalculation and that the stability so far achieved in relations between the Soviet and Western alliances might rapidly be jeopardised by the spread of nuclear weapons to countries who do not now possess them.

For this reason international agreements to prevent the dissemination or acquisition of nuclear weapons must be and are an urgent aim of our foreign policy. It is against this background that we are now reviewing civil defence policy and deciding what the form of our civil defence preparations should be. Nobody in his senses denies that nuclear war would cause wholesale suffering and widespread death. Nothing could advert the horrors of a nuclear attack if it came. The rôle of civil defence is to do something to lessen the impact of the blow, to reduce suffering, and to help the the survivors to survive.

My right hon. and learned Friend the Home Secretary believes that it could do a good deal, and the House must always remember that, apart from civil defence in the narrow sense, our home defence plans make provision for carrying on, so far as possible, the essential business of government and helping to restore some measure of ordered society.