First Standing Committee on Statutory Instruments, &c.



Wednesday 22 March 1995


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The Committee consisted of the following Members:

Chairman: Mr. John Maxton

Bates, Mr. Michael (Langbaurgh)

Brazier, Mr. Julian (Canterbury)

Campbell, Mr. Menzies (Fife, North-East)

Davidson, Mr. Ian (Glasgow, Govan)

Douglas-Hamilton, Lord James (Parliamentary Under-Secretary of State for Scotland)

Duncan Smith, Mr. Iain (Chingford)

Fabricant, Mr. Michael (Mid-Staffordshire)

Galloway, Mr. George (Glasgow, Hillhead)

Home Robertson, Mr John (East Lothian)

Hughes, Mr. Robert G. (Harrow, West)

Liddell, Mrs. Helen (Monklands, East)

McAvoy, Mr. Thomas (Glasgow, Rutherglen)

McFall, Mr. John (Dumbarton)

McNair-Wilson, Sir Patrick (New Forest)

Rathbone, Mr. Tim (Lewes)

Robertson, Mr. Raymond S. (Aberdeen, South)

Squire, Ms Rachel (Dunfermline, West)

Stewart, Mr. Allan (Eastwood)

Mr. J. D. W. Rhys,Committee Clerk

3 First Standing Committee on Statutory Instruments, &c. Wednesday 22 March 1995


[MR. JOHN MAXTON in the Chair]

Draft Prisoners and Criminal Proceedings (Scotland) Act 1993 elease of Prisoners Etc.) Order 1995

4.30 pm

The Parliamentary Under-Secretary of State for Scotland (Lord James Douglas-Hamilton): I beg to move, That the Committee has considered the draft Prisoners and Criminal Proceedings (Scotland) Act 1993 (Release of Prisoners Etc.) Order 1995.

The Chairman: With this it will be convenient to consider the draft Prisons (Scotland) Act 1989 (Release of Prisoners Etc.) Order 1995.

Lord James Douglas-Hamilton: The draft orders provide that in cases of sentences of fewer than 10 years the Secretary of State must release the person if the Parole Board for Scotland so recommends. Similar, but not identical, provisions are already in place in England and Wales. The power under which the order is made is section 20(3) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, which enables the Secretary of State, after consultation with the Parole Board for Scotland, to make the board's recommendations mandatory rather than advisory. That power can be used in respect of any class of determinate sentence prisoner specified in the order. At present the Secretary of State has no power to release a prisoner on parole, except on the recommendation of the board, but he may refuse to accept such a recommendation. In their response to the Kincraig proposals, the Government announced that they would seek powers to enable the Secretary of State to delegate to the board responsibility for release decisions, and those powers were taken in the Prisoners and Criminal Proceedings (Scotland) Act 1993, with which the hon. Member for Dumbarton (Mr. McFall) and I were involved. Under the provisions of the 1993 Act, only those prisoners who are sentenced to four years or more will be eligible for consideration for parole after serving half their sentence. There are in the system prisoners who qualify to be considered for parole at one third of sentence under the provisions of the Prisons (Scotland) Act 1989. The principle of the 1993 Act was that for any prisoner sentenced before its commencement, the existing provisions would remain in force. We therefore took powers in section 18 of the 1989 Act, as amended by section 134 of the Criminal Justice and Public Order Act 1994, to enable the Secretary of State to exercise essentially the same order-making power in relation to prisoners sentenced before the commencement of the 1993 Act. The operative date for that purpose was 1 October 1993. That is why there are two orders before the Committee. Together, they ensure that all eligible 4 prisoners are treated on the same basis, whether their release is considered under the 1989 Act or the 1993 Act. The orders propose that when prisoners are serving a sentence of fewer than 10 years' imprisonment, the board's recommendation for parole must be implemented by the Secretary of State. Any recommendation for parole involving a sentence of 10 years or more will continue to require the approval of the Secretary of State.

Mr. Thomas McAvoy (Glasgow, Rutherglen): The role of the Parole Board is a key issue. Has the Minister considered amending the law or involving families of the victims of those who are being considered for early parole?

Lord James Douglas-Hamilton: It is relevant that the representations of the families of the victims should be taken fully into account. I shall give an example of a case that is within my knowledge concerning a man who had committed incest. As far as the prisons were concerned, there was no reason why he should not be released, but it was relevant that his family might not be ready for his release. The Parole Board should take proper and objective account of such views. The orders provide that when prisoners have been released on licence the Secretary of State will be required to revoke the licence and recall the person to prison if the Parole Board so recommends. The Secretary of State will retain his power to recall any prisoner if it is not expedient to refer the case to the board for its recommendation. He would then refer the case to the board as soon as possible to consider whether to direct the prisoner's re-release. I am confident that the time has come to entrust that greater authority to the board. We have made significant changes to the parole scheme to make it more open and accountable. We have strengthened the independence of the board, increased its membership to 16 and given it enhanced resources. I pay tribute to the recently appointed chairman, Mr. Ian McNee, and to the other members for the conscientious way in which they carry out their functions. As hon. Members know, the board has an onerous workload which it discharges efficiently and against tight deadlines. I believe that the board is well placed to exercise the significant responsibilities placed on it by the orders, which I ask the Committee to approve.

Mr. John McFall (Dumbarton): As the Minister said, both he and I were members of the Committee on the Prisoners and Criminal Proceedings (Scotland) Bill 1993. I wonder why equity between prisoners sentenced under the 1989 Act and those sentenced under the 1993 Act was not dealt with at that time. The Minister will know that since the 1993 Act was passed, we have had to return to Parliament on several occasions—notably, in connection with the Criminal Justice and Public Order Act 1994—to incorporate certain aspects that I and others believe should have been incorporated in the 1993 Act. Perhaps that is indicative of the lack of clarity and coherence in that Act. I share the Minister's enthusiasm for these orders because, as he said, they give equity to those who were sentenced before 1993. I also pay tribute to the Parole Board and to Mr. Ian McNee and the other 15 board members. My hon. Friend the Member for Glasgow, 5 Rutherglen (Mr. McAvoy) asked a question about the involvement of victims and victims' families. Will the Minister tell us what measures he has implemented to keep the Parole Board in touch with the public and with public opinion? I am all for the professionalism of the Parole Board being enhanced and the Secretary of State taking a hands-off approach, but I am mindful of what the Minister said about those sentenced to more than 10 years—the Secretary of State still has the prerogative to recall such individuals to prison. The Minister will remember that during proceedings on the 1993 Act, concern was expressed about revoking prisoners' licences and recalling them to prison. At that time, it was said that there was a chance that prisoners could be recalled for a trivial offence, leading to their licences being revoked and to their being required to carry out the rest of their sentence. That measure could be provocative and could hinder the rehabilitation of certain prisoners. In light of the orders before the Committee, has the Minister any further comments on that subject? I welcome the further implementation of the Kincraig proposals, which I welcomed at the time of the 1993 Act. The orders are designed to tidy up and bring a measure of equity to the legislation and, therefore, the Opposition endorse them. I hope that the Minister will answer the two questions that I have asked.

Mr. Tim Rathbone (Lewes): I do not wish to detain the Committee, but I want to ask my hon. Friend the Minister for clarification on the matter of release on licence. As I understand the law as it applies in England, those people sentenced before 1993 cannot be released on licence at the time when they would normally have been released anyway. In an important case in my constituency, a child molester was released without any supervision—not on licence—simply because he was sentenced before 1993. Is that another instance of Scottish law being better than English law in the way in which it is applied? If that supposition is correct, would my hon. Friend the Minister be so kind as to press his right hon. and hon. Friends in the Home Office to make the sort of change to English law that will result in its being applied as it is in Scotland?

Lord James Douglas-Hamilton: I am glad to respond to my hon. Friend the Member for Lewes (Mr. Rathbone). I shall refer the case that he spoke of to Home Office Ministers for a reply. I can say that there is a distinction between discretionary life prisoners and mandatory life prisoners. In Scotland, the Parole Board has the power to direct the release of a discretionary life prisoner who has served the relevant part of the sentence, as laid down, by the courts. The board's authority to do so was introduced in section 2 of the 1993 Act, which paved the way to implement the judgment of the European Court of Haman Rights in the case of Thynne, Wilson and Gunnell. The Secretary of State retains final control over the release of mandatory life prisoners, but he must have a positive recommendation from the board and must consult 6 the judiciary. We believe that such a system provides the best safeguard for the public against those who have committed the most serious crime of murder. The Secretary of State has the power to recall a licence at any time and summon a person back to prison if there is any risk or threat to the public, but I will make sure that Ministers at the Home Office are aware of the point raised by my hon. Friend. The hon. Member for Glasgow, Rutherglen raised the issue of victims, which was also taken up by the hon. Member for Dumbarton. The background report will necessarily comment on the possible resentment of victims and others in the local community, and any possible risk to past or potential victims has to be taken into account by the board, as is only right.

Mr. McAvoy: I am grateful to the Minister for saying that the board must take such matters into account, but what mechanism will be used to ascertain how families and communities feel about the individual in question?

Lord James Douglas-Hamilton: A full and very detailed report is made. I have attended a Parole Board meeting and I know that it has an enormous amount of reading material. I have mentioned one particular case. I assure the hon. Gentleman that any threat to members of the family or to other potential, victims would prevent the prisoner concerned from being released when his—or her, but there are very few women prisoners in Scotland—time comes. The hon. Member for Dumbarton mentioned equity between the 1989 Act and the 1993 Act. Inevitably, when a Bill passes through Parliament there are occasional anomalies. Neither the hon. Gentleman nor I noticed them at the time, but I am sure that he agrees that such anomalies must be corrected before they have an effect on cases in assessment. That has been achieved. The point raised by my hon. Friend the Member for Lewes is essentially correct. Prisoners sentenced before 1 October 1993 in Scotland also have to be released unconditionally at their earliest date of liberation. I shall make certain that Ministers at the Home Office are aware of his concern.

Question put and agreed to.

Resolved, That the Committee has considered the draft Prisoners and Criminal Proceedings (Scotland) Act 1993 (Release of Prisoners etc.) Order 1995.

Resolved, That the Committee has considered the draft Prisons (Scotland) Act 1989 (Release of Prisoners etc.) Order 1995.—[Lord James Douglas-Hamilton.]

Committee rose at seventeen minutes to Five o'clock.



Maxton, Mr. John (Chairman)

Bates, Mr.

Brazier, Mr.

Davidson, Mr.

Douglas-Hamilton, Lord James

Duncan Smith, Mr.

Fabricant, Mr.

Liddell, Mrs.

McAvoy, Mr.

McFall, Mr.

McNair-Wilson, Sir Patrick

Rathbone, Mr.

Stewart, Mr.