My Lords, I support the purpose of this proposed new clause. It is highly desirable that there should be a judicial intervention in the process. The arguments of principle have been articulated by the noble Lords, Lord Carlile and Lord German, and so I will not repeat them, but I will make one or two points about the provision in the Bill and the proposed new clause.
First, the noble Lord, Lord Carlile, expressed concern about the circumstances in which the Home Secretary might form the requisite opinion, and set out his reasons; and he was right to. If I may, I will share with the Committee my experience when I was at the Home Office at the back end of the 1980s. I am well aware that the procedure is wholly different, but I have a fear that it will be replicated in this instance.
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As the Parliamentary Under-Secretary, I was responsible for setting the initial ruling on the tariffs of the life-sentence offenders, which then went to the Home Secretary. What happened in those days was that one got in one’s box, often very late at night, a submission from the department in which it set out a very brief summary of the offence. Associated with that were the comments of the trial judge, if the trial judge was still around, together with the comments of the Lord Chief Justice, and then followed the recommendation of the department—12 years, or whatever. At that point, the Parliamentary Under-Secretary had to form a view; he or she scribbled “12 years” or “14 years” on top of the paper, and it went to the Home Secretary, who in the generality of the cases would accept the advice.
I know that the circumstances have changed profoundly, but the department might very well copy that process in terms of advising the Secretary of State about whether he or she has the requisite opinion. I think that would be profoundly unfair and I therefore very much welcome the judicial intervention contemplated by the proposed new clause, which is right in principle.
I will make three smaller points. First, in the Bill, the Secretary of State has to set out his or her reasons. I hope very much that there will be a requirement that the reasons are fully deployed. What I fear will happen is that the Secretary of State will simply repeat the language of the Act—simply to say that there is a significant risk, and so on. What the prisoner needs to know is the basis on which that judgment is formed, because otherwise the prisoner cannot really address it. So my point to the Minister is that the reasons must be full.
The second point is rather related. I am deaf, but I am wearing my hearing aids and I think I heard the noble Lord, Lord Carlile, say that the High Court would conduct a full hearing. That was the phrase he used and that is what we need to know: what is the procedure? If the High Court will do only a paper exercise, in my view that is not good enough. It is very important that the procedure before the High Court, before the authority is issued, is a full hearing, or at least has the ability for a full hearing. That means making a submission, a proper argument, and all the rest.
Lastly—I accept that this is a drafting point, but we are in the business of drafting—subsection (13) of the new clause proposed by the noble Lords provides the word “would”: the High Court concludes that there would be a significant risk to the public. I question the word “would”. A word such as “might” would seem to be much better because, if the High Court has asserted that there “would” be a risk, that seems to prejudge the issue as it comes before the Parole Board, which might have some difficulty in concluding that there was no risk. So I acknowledge that it is a drafting point, but I would like the word “might” or something like it to be inserted rather than the word “would”. That said—and I hope I have not been too pedantic—I do think that this is a very important proposal articulated by two of the noble Lords who put their names to it, and I strongly support it.