Lord Lloyd of Berwick seeks to amend legal aid bill to throw out US-style mandatory sentences

A former law lord will attempt to amend the government's controversial legal aid bill to throw out a "peculiar provision" which would introduce a "two strikes and you're out" approach to sentencing.

Lord Lloyd of Berwick is joining forces with Lady Stern, a former director of the National Association of the Care and Resettlement of Offenders, to throw out the US-style mandatory sentences which have been criticised by magistrates.

In a Guardian article, Lloyd and Stern argue that clause 117 of the bill would mean that anyone convicted of a serious "listed offence" who has been sentenced to at least ten years or life and who then commits a further offence attracting a sentence of at least ten years "must" be given a life sentence.

But Lloyd and Stern questioned the provision.

"This is a most peculiar provision. It has been described by the government as a mandatory life sentence. But it is no such thing. To our mind a mandatory sentence is a sentence which the court is obliged to pass, like the mandatory sentence of life imprisonment for murder, which the court is obliged to pass, even when the defendant has killed in mercy.

"Clause 117 is quite different. Despite the use of the word 'must', there is no must about it. For the clause recognises that judges must pass sentence they believe to be just in the particular circumstances. That is what judges always do. Why then does the government persist in calling the sentence mandatory? It cannot surely be to influence the judge's belief as to what is just, or to create some sort of presumption in favour of a life sentence. How would the judge know what weight to give to such a presumption?"

Lloyd and Stern take issue with the government's claim that the bill would lead to an extra 28 prisoners serving life sentences. "Can we justify such an increase? We already have 7,663 life prisoners in England and Wales. If you add to them those serving indeterminate sentences for the protection of the public (IPP), which is a life sentence in all but name, the figure is 13,825. This inordinate use of the life sentence is peculiar to us."

Kenneth Clarke, the justice secretary, defended the plans last year on the grounds that the "two strikes and you're out" mandatory sentence would only apply to somebody who had committed two "probably near-murderous attacks".

But the Guardian reported last year that the proposal was added as an amendment to the legal aid, sentencing and punishment of offenders bill after an intervention by David Cameron. Clarke, who illustrated his opposition to the use of mandatory sentences at a hearing of the commons home affairs select committee in October, is understood to have clashed with Theresa May over the issue.

Lloyd and Stern highlight the unease among senior members of the judiciary when they write: "Words in a criminal statute have to be applied by the courts. They should mean what they say, neither more nor less. They should not be used for the purpose of "sending a message" to the public, that the government is being tough on crime."