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Sentencing Guidelines Council: Supplementary Provisions

Volume 405: debated on Tuesday 20 May 2003

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'(1) In relation to the Council, the Lord Chancellor may by order make provision—

  • (a) as to the term of office, resignation and reappointment of judicial members and non-judicial members,
  • (b) enabling the appropriate Minister to remove a judicial member or non-judicial member from office on grounds of incapacity or misbehaviour, and
  • (c)as to the proceedings of the Council.
  • (2) In subsection (1)(b) "the appropriate Minister" means—

  • (a) in relation to a judicial member, the Lord Chancellor, and
  • (b) in relation to a non-judicial member, the Secretary of State.
  • (3) The validity of anything done by the Council is not affected by any vacancy among its members, by any defect in the appointment of a member or by any failure to comply with section 152(4A), (4D) or (4E).

    (4) The Lord Chancellor may pay—

  • (a) to any judicial member who is appointed by virtue of being a lay justice, such remuneration or expenses as he may determine, and
  • (b) to any other judicial member or the Lord Chief Justice, such expenses as he may determine.
  • (5) The Secretary of State may pay to any non-judicial member such remuneration or expenses as he may determine.'— [Yvette Cooper.]

    Brought up, and read the First time.

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

    With this it will be convenient to take the following: New clause 6—Increase in sentences for hate crimes.

    New clause 10— Abolition of imprisonment for fine default.

    • Government amendment No. 233.
    • Amendment No. 31.
    • Government amendments Nos. 234 and 235.
    • Amendments Nos. 482, 483 and 67,
    • Government amendments Nos. 236 and 197.
    • Amendments Nos. 175 to 177.
    • Government amendment No. 198, and amendments (a) and (b) thereto.
    • Amendment No. 178.
    • Government amendment No. 199.
    • Amendments Nos. 181, 179, 183, 184, 180, 25, 182, 26 and 186.
    • Government amendments Nos. 200 and 201.
    • Amendment No. 188.
    • Government amendments Nos. 262 to 271, 237, 238, 272 to 275 and 239 to 241.
    • Amendment No. 488.
    • Government amendment No. 242.
    • Amendment No. 484.
    • Government amendment No. 243.
    • Amendments Nos. 489, 485 to 487 and 490.
    • Government amendments Nos. 244 to 247.
    • Amendment No. 191.
    • Government amendments Nos. 248 and 249.
    • Amendments Nos. 492, 496 and 494.
    • Government amendment No. 276.
    • Amendments Nos. 493, 497 and 495.
    • Government amendments Nos. 277 to 280.
    • Amendments Nos. 192, 120 and 193.
    • Government amendment No. 281.
    • Amendments Nos. 491 and 68 to 70.
    • Government amendments Nos. 282 to 284, 250 to 252 and 285 to 298.
    • Amendment No. 194.
    • Government amendments Nos. 202, 253, 254, 301, 302, 304, 306 to 313, 255, 315 and 256 to 258.

    This group contains a series of amendments, many of which are technical and drafting amendments. In the time available, I shall concentrate my remarks on the main substantive amendments tabled by the Government. I will not go into detail about why we are resisting many of the Opposition amendments on other topics, although if we have time later, I shall be happy to respond to points that hon. Members make in speaking to their amendments.

    The main Government amendments in this group relate to the Sentencing Guidelines Council and result from an extensive and constructive debate in Committee. I have read the reports of those debates, and I thank my hon. Friend the Member for Nottingham, North (Mr. Allen) for raising some important issues, and all who contributed to the discussion about the composition and role of the council. My hon. Friend the Member for Leeds, Central (Hilary Benn), now the Minister of State, Department for International Development, said in Committee that the Government would consider the issue further. That is what we have done and why we have proposed these amendments.

    The argument advanced in Committee was that the membership of the council should be widened to include those from a non-judicial background. The amendments do that. We have not reflected the precise proposals put forward by my hon. Friend the Member for Nottingham, North and by the Opposition, and I shall explain why.

    There is a series of principles that are broadly agreed. First, our aim is to achieve greater transparency and public legitimacy for the sentencing framework. Secondly, we need to maintain and safeguard judicial independence, which is vital for underpinning the rule of law and for democracy. In particular, we need to ensure that judicial independence in sentencing decisions on individual cases is safeguarded. Thirdly, it will help us to achieve greater credibility and legitimacy for the sentencing framework if there is non-judicial input into the guidelines. Fourthly, democratically elected representatives in Parliament should have a voice in the process, although we do not want to politicise the process of developing the guidelines. Fifthly, we must ensure that we produce high quality guidelines that command the respect of members of the judiciary, who need to take decisions on a day-to-day basis, as well as practitioners and the wider public. The process must be credible with both the judiciary and the public.

    I was not a member of the Standing Committee, but I understand that in Committee my hon. Friend the Member for Leeds, Central (Hilary Benn), now the international development Minister, said that various amendments relating to juvenile sentencing were not appropriate, as the Government plan to introduce legislation to bring together the purposes of juvenile sentencing. Can my hon. Friend confirm that and indicate when it is likely to happen? Will she confirm that the issues of juvenile sentencing that are before the House today can be reviewed at that stage?

    I can confirm that much work is under way on some of the issues concerning juveniles. My hon. Friend is aware that that is being led by the Home Office, and I am sure that my hon. Friends at the Department will be happy to write to him about those proposals.

    Before my hon. Friend gets into the detail, this may be the appropriate time to put on record my thanks, and I hope the thanks of all who served on the Standing Committee, for the way in which the Government have responded to the proposals put before them by all parties, including those on the Opposition Front Benches, who attempted to be constructive in the development and broadening out of the Sentencing Guidelines Council. As my hon. Friend continues her remarks, she will come to issues on which there are certain reservations and others on which I think we could go a little further, but I hope that the Government take great satisfaction from the way in which they involved Members to produce a better Bill than it was when it first went into Committee.

    I thank my hon. Friend for his remarks, which I welcome.

    The Bill already makes considerable improvements by setting up the Sentencing Guidelines Council to draw up clear guidelines of high quality. The council's decisions will be informed by the research and the expertise of the Sentencing Advisory Panel. Its draft guidelines will be published and scrutinised by the Select Committee on Home Affairs, but in Committee members on both sides argued that we should go further and extend the membership of the council to include those from non-judicial backgrounds. The Government have done so by tabling amendments in order to improve the quality and authority of the guidelines.

    4.15 pm

    In addition to the judicial members appointed by the Lord Chancellor, the Home Secretary will appoint five individuals to the Sentencing Guidelines Council with experience in one or more of the following fields: policing; criminal prosecution; criminal defence; the interests of victims; and sentencing and correctional services policy. The council will have seven judicial members, as well as the Lord Chief Justice, who will continue as chairman and will appoint a deputy chairman from among the council members. Judicial members will therefore form the majority, helping to maintain the confidence of the Court of the Appeal and the judiciary more widely.

    Judicial members will be allocated from those who fall under the responsibility of the Lord Chancellor, so they will be appointed by him in consultation with the Home Secretary and the Lord Chief Justice. Non-judicial members reflect the wider policy interests of the Home Secretary and will therefore be appointed by him in consultation with the Lord Chancellor and Lord Chief Justice. The majority of members of the council will already be paid from the public purse, but for those to whom that does not apply, the power to pay a fee ensures that the most suitable people can be appointed.

    Expanding the council's membership in that way will enable it to produce robust and comprehensive sentencing guidelines that command respect and increase confidence in the criminal justice system.

    Thank you, Mr. Deputy Speaker; I have checked the meaning of brevity in the dictionary, so this intervention will be brief.

    The Minister will know very well that the judiciary in this country is primarily male and white. Will she consider introducing a provision to ensure that the non-judicial members make the council more reflective of the community in this country? In other words, there should be some provision to increase the representation of women and ethnic minorities.

    I welcome the hon. Lady's work in trying to ensure that the voices of women and minority ethnic communities are heard at all levels in public service. I shall certainly ensure that the Home Secretary is aware of the points that she has made when he considers appointments to the council.

    I hope that my hon. Friend will allow me to make a more substantial point about the composition of the Sentencing Guidelines Council. All of us welcome the broadening of the membership to include police officers, prison governors and so on. One of the key things that we tried to achieve in Committee was to ensure that representatives of the three arms of state—judiciary, legislature and Executive—would be around the same table to discuss sentencing and arrive at a consensus about it, so that the debilitating exchange between the Lord Chief Justice, the Home Secretary and Members of Parliament could be resolved so as to restore some faith and credibility in the council. Will she discuss with the House whether she believes that it is appropriate for the Home Secretary to be directly represented on the council, if not a member of it, at some future point, or for the Chairman of the Select Committee on Home Affairs or the Select Committee on the Lord Chancellor's Department to be represented, so that all three arms of state are represented around the table?

    I know that my hon. Friend raised that point directly with the Home Secretary during debate about the previous group of amendments, as I watched the debate on the monitor. I think that I heard the Home Secretary reply that he was daunted by the prospect of having to work on the detail of a considerable number of sentencing guidelines.

    There is also a broader point: we are trying to secure a balance, and we need to ensure that a wider voice is heard in developing the guidelines. My hon. Friend is right that it is important that the voice of Parliament should be heard in the process, as well as the views of the Home Secretary. Equally, it is important that we avoid over-politicising the process. For example, I know that he and other hon. Members have made clear their view that we should not engage in a bidding war about sentencing and that we should not inappropriately politicise the process and encourage debates on the Floor of the House or in which Cabinet Ministers and their shadow counterparts engage in a bidding game about the appropriate sentencing and mitigating factors regarding the detail of different guidelines.

    The proposals set out an appropriate balance whereby the Home Secretary will appoint members to the Sentencing Guidelines Council on the basis of their expertise in various parts of the criminal justice system. It is right that the Home Secretary himself is not a member of the council. Equally, it is right that Parliament should be able to scrutinise the guidelines and have its voice heard—the Select Committee on Home Affairs, in particular, should be able to discuss them—but there are, frankly, advantages in not having politicians as members of the council.

    The Minister stated a wee bit earlier that she listened to the debate on the previous group of amendments. I had assumed, having read the Bill, that new clause 28 and the clause to which it relates, clause 152, have no application in Scotland. In the previous debate, mention was made of the Sentencing Guidelines Council considering, for example, road traffic offences. For the absence of doubt, can the Minister confirm that the council's remit will have no impact and jurisdiction in Scotland?

    My understanding is that the hon. Lady is right in her interpretation. If she will allow me, I shall clarify the point when I sum up or, if I do not have time, at a later stage.

    I understand that to have politicians sitting on the Sentencing Guidelines Council might be undesirable, and we certainly do not seek that. As the Minister will be aware, however, we have argued, and continue to argue, that a degree of parliamentary input into the process through having guidelines ratified by Parliament by affirmative resolution might go a long way towards reassuring the public about Parliament's involvement without in any way detracting from the fact that the guidelines themselves will be formulated by an expert council.

    Again, the answer is that we need to strike the right balance. The hon. Gentleman said earlier that he did not want to join a bidding war on sentencing. It would be inappropriate to ask Parliament as a whole to debate and vote on the detail of every single sentence. We set the maximum sentence in Parliament, and it is right that we do so. In the previous debate, which was led by my right hon. Friend the Home Secretary, we heard about the concerns and views of Parliament on some of the most serious offences, but we should bear in mind that there are a huge number of offences and there will need to be, over time, a large number of guidelines.

    The appropriate role for Parliament is to set the broad sentencing parameters by defining the offence and the maximum sentence, and the judiciary's role is to make judgments on individual cases. The Sentencing Guidelines Council effectively provides a bridge between those two roles. If we are to get the balance right in a sensitive relationship between different branches of government and different institutions within a democracy, there is huge value in not asking Parliament as a whole to vote on every single guideline, but equally we must ensure that Parliament has its voice by allowing the Home Affairs Committee to express its views. The Sentencing Guidelines Council will also need to have regard to the views of the Home Secretary and the Lord Chancellor.

    Government amendment No. 198 provides that a non-judicial appointment might be a civil servant. Can my hon. Friend clarify whether that is because the personal qualities of some civil servants will make them appropriate for the job, or are they intended to be another bridge between the Sentencing Guidelines Council and the Secretary of State?

    My hon. Friend is right that the amendment would allow civil servants to be appointed. Experience of sentencing, for example, work in the Prison Service or in sentencing policy, may mean that civil servants—Government employees—have the greatest expertise. My hon. Friend is also right that we should be able to take account of appropriate expertise. My right hon. Friend the Home Secretary believes that people should be appointed on the basis of their expertise, not as representatives of his views.

    :I thank my hon. Friend and all Front-Bench Members for their generosity in giving way. It has promoted a helpful and positive dialogue. Does my hon. Friend accept that members of the Standing Committee proposed the three-way combination on the Sentencing Guidelines Council partly so that everyone bought into the process and the decision making? If the Home Secretary, a deputy or the Chairman of either the Home Affairs Committee or a Committee that deals with judicial matters does not serve on the Sentencing Guidelines Council, there may be a distance between the judiciary, the Executive and the legislature that will lead to the Home Secretary's being able to discount the council's views or hon. Members' being able to engage in a bidding war when matters come before the House. In the long-term, will my hon. Friend re-examine the possibility of uniting the three arms of state?

    In the end, no system can guarantee consensus if different views are held. However, the set-up that we propose allows a proper dialogue between those who have different views and approach the matter from different perspectives, and ensures that the dialogue takes place in the public arena. It allows for the draft guidelines to be published and for the Home Affairs Committee to comment.

    It is equally important to recognise that, although we should hold a dialogue and aim for broad consensus and legitimacy for the guidelines, we each play different roles in the process. On other subjects, my hon. Friend has argued for increasing the separation of powers and introducing greater clarity into the separate components of government.

    The proposal attempts to strike the right balance. The Home Secretary makes the appointments, and there are clearly plenty of opportunities for his views to be heard as part of the process. It is also important that the Sentencing Guidelines Council is constituted in the way in which the amendments set out. It will be chaired by the Lord Chief Justice and have a clear voice.

    I am most grateful to the Parliamentary Secretary for her generosity in giving way. The hon. Member for Nottingham, North (Mr. Allen) entertained us greatly and made valuable contributions in Committee. However, the Parliamentary Secretary is fundamentally right. Our commitments and obligations under the European convention on human rights, especially on fair trial, mean that it would be wrong for the Home Secretary to be a member of the Sentencing Guidelines Council.

    I welcome the hon. Lady's support. We must ensure that we each play our separate roles and that the independence of the judiciary is maintained. We must also ensure that the process has the confidence of the different parts of government and our democratic institutions. The system must have the confidence of the judiciary and be able to produce high quality guidelines that the judiciary and the magistracy can use on a daily basis.

    We have had an extensive debate about the Government's thinking in response to the amendments. Most other Government amendments in the group are minor and make various textual improvements to the aspect of the Bill that deals with sentencing. Some respond to drafting questions that were raised in Committee and others to deficiencies in the measure. Some are consequential.

    We have tried to accommodate concerns raised by members of the Committee, while maintaining what I consider to be an important balance by ensuring that sentencing is carried out properly and appropriately, and that trials are fair and are conducted transparently. The hon. Member for North Down (Lady Hermon) raised that last point.

    I will happily respond to amendments that Members wish to discuss later, but I shall end my speech now so that everyone has a chance to speak about new clause 28.

    4.30 pm

    The Government should be commended on recognising the strength of the view expressed in Committee that the current arrangements for sentencing, and indeed their own proposals, might not be sufficient. I thank the Home Secretary and the Minister for producing what is probably a better alternative.

    Nevertheless, as was pointed out by the hon. Member for Nottingham, North (Mr. Allen), there remains the considerable issue of whether the Sentencing Guidelines Council in its new form will be deemed representative enough. As was said in Committee, tension will inevitably surround the options of a council consisting of professionals and one that might be seen as broadly representative of the public at large.

    Amendment No. 177, tabled by the hon. Member for Nottingham, North, lists the people whom he would like to be on the council. I will not read out the entire list, which in any event may be altered according to influences brought to bear on him by other Members; but it includes a representative of the business community, a representative of a victims' organisation, a teachers' representative and a representative of ex-offenders' institutions. The hon. Gentleman is trying, as he did in Committee, to widen the council's scope and to make it rather different from what the Government intended.

    The Government originally described the council as a judicial body, providing also for the continued existence of a Sentencing Advisory Panel to contribute alternative input. One issue that the Minister has not clarified to my satisfaction is the continuing interaction between the two bodies. I suspect she will say that the panel is intended to operate exactly as it was always intended to operate, but given the proposed inclusion of new council members it could be argued that a measure of duplication is developing. I fear, however, that because of the timetabling and the whole way in which our business has been handled, we shall not have time to engage in a proper dialogue on the subject this afternoon.

    I am quite content with the Government's list of four or five additional members. The "shopping list" of potential members was drawn from various suggestions from all quarters of the Committee. I will spare the hon. Gentleman's blushes by not specifying his own suggestions.

    I should be grateful to the hon. Gentleman for that.

    The key amendment tabled by us is amendment No. 26. The point is that however we approach this issue, the general public input simply is not there. I do not criticise the Government for that, because I accept that the detailed process of setting sentencing guidelines is a matter for the professionals. Indeed, I think that the hon. Member for Nottingham, North, having said that he was broadly satisfied with the list produced by the Government—which includes policing, criminal prosecution, criminal defence, the promotion of the welfare of victims of crime, sentencing policy and the administration of sentences—takes the view that it already goes a long way towards meeting his requirements.

    The difficulty that will always exist is that the proposals might not be in accordance with the public's perception when they are published, even though there could be public discussion and debate on them. I take the Minister's point that the Home Affairs Committee will be able to look at the guidelines and publish a learned document, although I am afraid that history shows that such a document would be perused for about 24 hours—if not 24 minutes—by the wider public, and for a little longer by the Government when they come to publish their response.

    If the hon. Gentleman looks at just about all the Home Office legislation passed in this Parliament, he will find clauses that have been introduced as a result of suggestions made by the Home Affairs Committee. Some things are also occasionally deleted at the suggestion of the Committee, so the hon. Gentleman should not be too hopeless.

    I certainly would not wish to disparage the work done by the hon. Gentleman and his Committee—far from it. My comment came from my own experience of serving on other Select Committees—I served on the Environmental Audit Committee—which showed me that a huge amount of work goes into Select Committee activities in the House. Although that work sometimes has an impact, I sometimes wish that we were more successful in making a greater impact through the reports that we produce. But that is in no way to diminish what the hon. Gentleman and the other members of his Committee attempt to achieve.

    Unless the public have a sense that suggestions can be taken up, we shall see the problem of a hole appearing between professionals and the general public over sentencing. When we considered this matter in Committee, my hon. Friends and I, and my right hon. Friend the Member for West Dorset (Mr. Letwin), came to the conclusion that we could see no reason why Parliament should not have a role in the setting of sentencing guidelines. I am extremely mindful of what was said earlier about not having bidding wars, and I certainly do not wish to see any taking place on this issue. That is one reason why amendment No. 26 specifically would not allow Parliament to initiate the setting of sentencing guidelines. The initiation of any change to existing guidelines must be a matter for the Sentencing Guidelines Council.

    The amendment envisages that, once the guidelines have been published—not as definitive guidelines, but as draft guidelines—the Home Affairs Committee should first have an opportunity to consider them and to produce a report. On publication of that report, the guidelines—or any changes to them, because the starting point would be the existing guidelines—would come into force after approval by both Houses of Parliament. I would envisage that process being carried out under the affirmative resolution procedure, and I would expect that it could be done shortly. Obviously, if Parliament refused to alter the existing guidelines, that would mean not that there were no guidelines but that the existing ones would remain. That would have the consequence of remitting the guidelines back to the Sentencing Guidelines Council for further consideration.

    I accept that that process would not be free of difficulty. I sometimes feel, however, that we do ourselves a disservice by constantly assuming that we shall engage in bidding wars or that we are incapable of taking responsible decisions and echoing public concerns. My experience in life—not just in this place—tells me that people who have responsibility tend to rise to it. If they are denied responsibility, we will have only ourselves to blame when the public cease to take us seriously.

    In the past couple of days, the hon. Gentleman has had a taste of how the Executive treat Parliament and how strong Parliament is when it wishes to discuss matters, perhaps for more time than we are being allowed today.

    There is a problem that the hon. Gentleman has to confront: while the judiciary has one hit, the Executive have two. The Government and the Home Office are very powerful and they are rightly listened to, but the Government also control the House of Commons. Parliament is their puppet. Therefore, if we allow the Executive two shots to the judiciary's one on sentencing. we will end up with a sentencing regime that is wholly formulated in the Home Office. Once again, that is why all three arms of state need to be properly represented, and they need to sit around the table at the Sentencing Guidelines Council and reach a consensus, however long it takes.

    The hon. Gentleman makes an important point, but the mechanism that I am suggesting has within it a number of safeguards that might well prevent that from happening. I see him crossing his fingers. We must be careful of wishful thinking, but we can have wishes.

    First and foremost, the guidelines council would produce the recommendations. I think that the hon. Gentleman will agree that, although it may be swayed by the Government, it will, on the whole, be independent of them. I know that there is supposed to be a telephone line that links the Home Secretary to the Lord Chief Justice.

    It may be discontinued, but in any event there would be sufficient other members of the Sentencing Guidelines Council to prevent excessive influence from being brought to bear.

    We would have recommendations from the Sentencing Guidelines Council, not from the Government, so Parliament would be asked to approve something from an independent body. It would then be vetted by the Home Affairs Committee, which the hon. Member for Nottingham, North would agree has shown a remarkable spirit of independence, absence of partisanship and willingness to work on a cross-party basis. The Committee would make sensible recommendations and reach sensible conclusions, as most Select Committees do.

    If the Home Affairs Committee approved the sentencing guidelines and thought them highly desirable, and bearing it in mind that Parliament would have the last say, let us assume for a moment that the Government would bring great pressure to bear on the Commons and on Members as to how they would vote on the matter. If the sentencing guidelines were rejected, based on what was clearly perceived to be Government pressure, the Government would have to live with the consequences, including, I suggest to the hon. Gentleman, considerable criticism and public debate, which, in itself, is one of the things that we seek to stimulate.

    On the other hand, the Commons may be seen to be acting independently of the Government, or perhaps even contrary to their views—a Government would be most reluctant to overturn Sentencing Guidelines Council recommendations—and it is more likely that the Commons would flex its muscles on the one or two occasions when the Home Affairs Committee says that there has been a mistake and that it is not prepared to go along with it. I cannot help but think that that would provide a mechanism that protected the public and public opinion and which might also improve the position. Of course there is no perfection, but the matter ought to be given serious consideration.

    There are two problems with the hon. Gentleman's argument. First, let us say that the Home Secretary, in asking Parliament to overturn guidelines, would do so only on the basis that it would play well with the public. He would no doubt have a massive chorus behind him, calling for the overturning of those weak judges and those professionals. It could be built up in such a way, although I am not suggesting that the current Home Secretary would do that. I mention the right hon. and learned Member for Folkestone and Hythe (Mr. Howard), who may operate differently.

    Secondly, already—before the Sentencing Guidelines Council is in being—great rafts of its powers on murder, dangerous driving and firearms have been stripped away. It is not even up and running yet, but a Home Secretary can use this place to strip out the sentencing issues that he regards as particularly important to him.

    Order. This is in danger of becoming a dialogue. There is limited time and other Members may wish to participate—including the hon. Member for Nottingham, North (Mr. Allen). 4.45 pm

    I take the hon. Gentleman's point and I shall simply say this. I am aware of the criticisms that he made; indeed, I share some of his disquiet, which I expressed earlier. However, the fact that the Government have chosen that course of action does show that the buck stops here. We already impose maxima and minima for certain offences. As the Minister accepted, it is wrong to say that Parliament has a role in sentencing not just in terms of policy but in setting certain maxima and minima for sentences. I would prefer Parliament to be engaged in that process in a responsible way, rather than being forced out completely; I cannot help thinking that that might ultimately play more into the hands of Executive power. However, the suggestion exists, and if I had the opportunity to press amendment No. 26 to the vote—I understand that I almost certainly will not, which is a reflection of the state of our procedure—I would seek to do so.

    I shall be very brief. If the hon. Gentleman is unsuccessful with that proposal, does he think that we can make much of the council's annual report, which will be laid before Parliament each year?

    It is certainly better to have an annual report than no annual report. I welcome such a report, and if it is laid before Parliament it will provide an opportunity for debate and for Members of Parliament to express their views.

    I turn briefly—I am conscious of time pressure—to a couple of other matters that feature in our amendments. The key amendment is No. 67, which is unrelated to the Sentencing Guidelines Council but concerns the fact that in considering sentencing, the Government—very properly, in our view—have decided to increase the sentencing powers of magistrates to 12 months. We had a great debate on this provision in Committee, and we said that we had reservations about it because of the failure to link it with the introduction of sentencing plus and sentencing minus; indeed, we have real anxieties about the effect on the prison population. Nevertheless, subject to its being adequately linked to sentencing plus and sentencing minus, which would provide mechanisms through which people can be released early or not imprisoned at all, we take the view that it is acceptable to increase magistrates' powers in this way.

    But lo and behold, clause 140 includes a further provision stating that the Government may increase the power to 18 months through statutory instrument. I simply do not think it appropriate to provide for such an enormous change in sentencing powers in that way. I am not saying that I cannot see a time when it might be correct to give magistrates sentencing powers of a maximum of 18 months imprisonment. However, if that is to happen it should be done through a short Bill that is brought before this House and considered in the ordinary way—in Committee, enabling a full debate and consideration.

    The Government are asking us to approve the principle of 18 months and say that the measure can be brought in whenever it is convenient. That is not a good way to legislate. Apart from anything else, we simply do not know what will happen. We very much hope that extending sentencing jurisdiction will be a good thing and that sentencing plus and sentencing minus will work well, but there is a lot to fear. At the moment, there is no coupling of 12 months to sentencing plus and sentencing minus. Secondly, even if it that happens, it is possible—because human affairs are not always successful—that in two or three years' time people will say that in fact, a mistake has been made in this regard.

    In such circumstances, giving the Government a power to increase the sentencing period to 18 months after the shortest of debates appears to us to be fundamentally wrong. Labour Members may also wish to consider whether this is appropriate or necessary. Even at this late stage, I very much hope that the Minister is willing to say that the Government are prepared to reconsider this issue. If she were to do so, I would withdraw my objection and reserve it for another place. But at the moment, it is our decision that we will seek to divide the House and get its opinion on this power. Amendment No. 67 is intended to do that. The view of my colleagues, myself and, I believe, Liberal Democrats is that the power is unnecessary and dangerous. If it is to be introduced, that should be done properly and not through a Henry VIII clause.

    Turning briefly to some of our other amendments, it may seem odd that amendment No. 120 deals with the schedule covering offences that will cease to be imprisonable, including the offence under the Trade Union and Labour Relations (Consolidation) Act 1992 of breach of contract involving injury to persons or property. When that Act was passed, that was considered an important safeguard, preventing violence and problems in trade union disputes, but it has not been explained why it should be included in schedule 19. We have tabled three important amendments to schedule 22.

    We had a debate yesterday about whether the inclusion of cannabis as a class C drug meant that all class C drugs should be made arrestable. A related issue is that by virtue of making cannabis a class C drug the Government now intend to raise the sentence for trafficking all class C drugs from five years to 14 years. We have always accepted the arguments for retaining the 14-year maximum sentence for trafficking cannabis and cannabis resin as if cannabis were still a class B drug, but there is no justification for raising to 14 years the maximum penalty for trafficking other class C drugs. As we discussed yesterday, there are only about 400 prosecutions a year for such offences, most of which involve substances which, albeit undesirable and bad for people to take, are not abused in the way that cannabis and class A drugs are. There is therefore no justification for introducing a draconian sanction against offences involving drugs such as diazepam and anabolic steroids.

    The Government have got themselves into a twist over this. They have tried to give the impression that they were reducing the classification of cannabis while in fact retaining most of the penalties for cannabis offences, keeping the arrestable offence and the offence punishable by a 14-year sentence for trafficking. The Government should provide a distinct category for cannabis and cannabis resin and leave the remaining class C drugs alone. A serious mistake is being made. If we had the opportunity to put our amendments to the vote, we would certainly seek to do so.

    I congratulate the hon. Member for Beaconsfield (Mr. Grieve) on the calm and rational way in which he made his case, just as he did in Committee. I extend that compliment to other Opposition and Government Members who served in Committee—we had a constructive debate, which is evident in some of the changes that we managed to secure from the Government. The hon. Member for Somerton and Frome (Mr. Heath) was a little harsh, as there have been a number of breakthroughs. The change to the Sentencing Guidelines Council is half a breakthrough, and the job can be completed another day.

    The amended purposes of sentencing may be a minor change, but they, too, are significant. The Government have now tabled an amendment stating that the rehabilitation of offenders should be a separate purpose of sentencing. I commend the former Home Office Minister, my hon. Friend the Member for Leeds, Central (Hilary Benn), on listening to the arguments made by Committee members from all political parties, acting on them and tabling an appropriate amendment. It is a small one, but it is none the less significant that there will be independent consideration of the purposes of sentencing.

    Colleagues will be amazed to hear that I do not want to say too much about the Sentencing Guidelines Council. I have said enough about it in Committee, and the Parliamentary Secretary, Lord Chancellor's Department, my hon. Friend the Member for Pontefract and Castleford (Yvette Cooper), kindly allowed interventions on the subject, as did the Opposition spokesman. The Parliamentary Secretary said that I have talked in the past—and I freely admit it—about the separation of powers. The paradox of sentencing is that we must recognise that there has to be a separation of powers. It is often quite murky in our constitution, but we must accept that the judiciary, the legislature and the Executive are all entitled to an independent view and an independent life without being constrained. The irony is that, in order to make progress, there must be a means of reconciling those three elements of state. That is all that the Sentencing Guidelines Council is seeking to do, as discussed in Committee.

    We have only half a Sentencing Guidelines Council at the moment, which is certainly better than none, but I am sure that colleagues here and in the other place will seek to ensure that the job is completed—if not entirely by the other place on this occasion, by ourselves on another and future occasion. Sadly, the lessons may be seared into our consciousness by a bidding war on the Floor of the House. A couple of serious offences were mentioned earlier, and one could almost hear someone thinking, "They should certainly get five years for this," while someone else was thinking, "No, six years," and someone else, "Seven or eight," and perhaps a "Nine" from the back.

    Let us go back to the example of the multiple offender from the north-east who was drinking and driving and taking life by reckless use of a vehicle. In those horrendous circumstances, or those surrounding the shooting of two young girls in Birmingham recently, who is immune to feeling outrage and perhaps opting for a longer sentence than might be proposed in a more rational and calmer environment? That is why I believe that we should continue to seek a way forward through the Sentencing Guidelines Council, whose deliberations, are slow, protracted and based on the hard miles ground out by the Sentencing Advisory Panel and its experts. One day I hope that we will get back to that.

    On judicial discretion, I believe that the Bill has a weakness. Although we assume that judges always have the final say in individual cases, it is not stated clearly enough in the Bill that judges shall have the final say. That argument was advanced in Committee, and I tabled an amendment to that effect here, but it was not selected. However, if we are to secure the right balance between the Executive and the judiciary—between the Sentencing Guidelines Council and what judges can do within the limits that it sets—we must clearly define exactly what judicial power is. Otherwise they—the judges, and perhaps others—might feel that the power could be eroded and diminished over time.

    I do not look at any particular Minister or at the cuddly Front-Bench Members who currently speak for the Opposition, but in future, other personalities might seek to abuse the power and to erode the long-standing independence of the judiciary. Specific proposals to secure judicial independence in principle should appear in a Bill at some time, so that the House can, if necessary, defend the principle.

    My final point, in response to this ragbag of new clauses and amendments, is about honesty in sentencing. By that, I do not mean the argument that life should mean life, but that when a judge sentences someone to two years' imprisonment, every single person in the courtroom knows that that really means one year in prison and one year out on licence or on probation. That does not play well in areas of the sort that I represent. I would far prefer us to be clear and honest about sentencing. A year in prison should mean just that. At the time of sentencing, we should make it clear that, in addition to a year in prison, for example, a person would also be given a year on probation—or on recall, or licence, or whatever.

    That would mean that people could not say, "That person got two years but they're out after half a sentence and I saw them in the street the other day." The real punishment given to an offender would not be changed, but we would be being honest about it. Unless we are honest, and stop concealing the truth about sentencing, we will not be able to reclaim our criminal justice system—not for those who work in it or who supply its clients, but for the public whom it is meant to serve. We have had many learned debates in Standing Committee and on the Floor of the House, but for all that, people still feel alienated and distanced from the criminal justice system. I have made a very minor suggestion for dealing with that problem, and I raise it again for consideration by the House. I propose that the members of the criminal justice system in each locality should get together to produce a brief and snappy report for the people whom the system is meant to serve. That report would be distributed to each elector in the area, so that people can understand how the police work, for instance, and whether crime rates are going up. They would also learn about how they can help the police, who the local beat bobby is, and so on.

    The report would also show people how the magistrates courts differ from Crown courts. Until one gets into the topic, that is quite a leap of knowledge. A lot of people regard courts as simply courts: they do not know the difference between the various types of courts. Other matters that the report could cover would be community sentences and how people can be involved in deciding them. People would be able to find out whether such sentences are a soft option, and what happens to those who receive them.

    Information on all those matters needs to be communicated to people. We need to start educating people about their criminal justice system. A number of colleagues in Standing Committee went a long way towards nudging that process along, but Government intervention is needed. The Government need to tell the local criminal justice boards that have been created recently that they have a duty to make a connection with people at home. Those are the people who should own the criminal justice system, just as people who pay dues to a society or club have a right to know what is going on in their group. If we make that connection, we will go a long way towards ensuring that people understand, appreciate and adhere to the values of the criminal justice system that we are all trying to communicate.

    May I begin by expressing my sympathy to you, Mr. Deputy Speaker, for being confronted with having to read out 118 amendments? Quite rightly, you declined to do so, for fear of taking up the time of the House. It is impossible to do justice either to the compass of the amendments or their details in the context of this debate. I do not think that any of us will be able even to try to do so.

    However, it is a great pleasure to follow the hon. Member for Nottingham, North (Mr. Allen), especially when he is in the sort of mode that means that I agree with everything he says. Sometimes he is not in that mode, but he is today. He has played an important part in consideration of the Bill, and he has made two very important points.

    First, the hon. Gentleman is absolutely right to demand what he calls honesty in sentencing. The same point was made a little earlier this afternoon by my hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes). When a sentence is pronounced, everyone involved in the case—inside or outside the court—should know exactly what it means, and what the consequences will be. That is the system that we must aim for. For a lot or people, the present system smells of some sort of deceit. Things happen that they do not expect: those in the know are aware of what a particular sentence means, but those outside that charmed circle do not. That is wrong, and it is something that we need to deal with.

    The second point made by the hon. Member for Nottingham, North was about the Sentencing Guidelines Council. He has been trying to widen the compass of the council and to involve us, as a legislature, in it. He is right to do so, and a variety of mechanisms could be employed.

    The hon. Gentleman chided me for being harsh on the Government, even before I had opened my mouth on the subject. However, Ministers and the Home Department have listened to some of the points that we made in Committee. The amendments are welcome and I shall certainly not oppose them. There are still some deficiencies in the proposals, however. I am not sure that, prior to setting the guidelines, our objectives are right; in some ways, they are mutually antagonistic. There is still a lack of clarity, although representation is much wider than it was.

    My greatest concern is that some of the aspirations for the Sentencing Guidelines Council will not be met in practice, simply because the compass of its work is so enormous. It is important to establish a working council in which people have confidence, which reconnects members of the public to the judicial process of which they often have little experience. People know of it only as it involves them and have no points of comparison with similar cases elsewhere in the country. They are often told what is outrageous by a press that does not necessarily consider carefully the consequences of its proposed sentencing policy. We watch a tawdry Punch and Judy show involving the Home Secretary and the senior judiciary, which is demeaning to the office of the Home Secretary and corrosive of the authority of the judiciary. Given that context, the establishment of a working, effective Sentencing Guidelines Council is extremely important.

    The hon. Member for Beaconsfield (Mr. Grieve) talked about the extension of powers to magistrates. I agree with the points that he made. There is serious concern both about the synchronicity of the extension of those powers with the introduction of custody plus and about the extension of sentencing powers by fiat of the Executive. We were signatories to amendment No. 67, so if there is a Division, I commend my right hon. and hon. Friends to support that provision.

    Amendment No. 492 and some subsequent amendments relate to drugs testing, a subject that has not yet been aired in this debate. However, we explored it fully in Committee, so to do so again on Report would riot be the best use of limited time. However, I am worried about the inconsistency of provision across the country and the lack of facilities for proper treatment after testing. A positive test should lead to positive consequences for the individual, who should be given help to deal with the results of drug abuse. My concerns about young children are shared by the organisations that work with them; the Government may not yet have the balance right in the current regime for providing support and help to young children who have a problem with addictive substances.

    There are two points on which I want to spend a little more time. The first is new clause 10, which deals with the consequences of fine default and suggests that prison is not a good solution. There have already been changes. In 1993, about 26,000 fine defaulters were imprisoned, but by 2001 the number had gone down to about 1,500. We know, for instance, that 830 people were imprisoned for non-payment of television licence fees in 1993, and that the figure was down to 30 in 2001.

    However, the fact is that a significant number of people are imprisoned for defaulting on fines, while at the same time we have huge problems not only with the burgeoning prison population but with the non-collect ion of fines, as shown in the National Audit Office report, which revealed that in the relevant year £387 million in total was imposed in fines but only £228 million was collected. When corrections have been made for previous payments and so forth, the collection rate is about 59 per cent. Frankly, that is not good enough.

    My suggestion to the Government is to forget about imprisonment for fine default. By all means, use imprisonment as a final consequence of contempt of court, and if the contempt of court resides in a persistent abuse of the fine system, let the contemnors finally face that penalty, but that will not be the answer in most circumstances. We need to be much more imaginative in the way in which we apply sanctions to those who default on fines.

    The hon. Member for Rayleigh (Mr. Francois)—I am pleased to see him here—made a very good suggestion to consider whether credit rating adjustments might be one way to deal with those to whom a credit rating is important, as a way to remind them that if they do not pay they are failing in their duty to the wider community. Various measures for the sequestration of assets could be considered. Certainly, depriving some people of the use of their motor vehicles while they have motor vehicle fines unpaid might be a very good way of concentrating their minds. All those ways are better than imposing a prison sentence, which is proving to be not a deterrent but a burden on the state. Frankly, that position should not be sustained.

    Alongside the decline in imprisonment for non-payment, which the hon. Gentleman recalls and which is largely due to some High Court judgments, there has been a fall in the proportion of total fine income paid. There has also been a fall in using fines as a sentence of choice by magistrates because they do not think that the fines will be paid. That is why I join him in saying that we need more effective enforcement, but the one method that he did not mention is direct payment from people's employment, from their bank or even, dare I say it, from their benefits. What is his view of that being more routine?

    There are ways of proceeding as the hon. Gentleman suggests, as we have seen not with fines but with support payments using the Child Support Agency mechanism. Clearly, such a mechanism could be used, but I have my doubts about the Inland Revenue administering anything else until it has got what it is supposed to be administering working correctly. However, he is right to mention that possible mechanism.

    Finally, I wish to deal with a very important new clause that we have tabled: new clause 6, which deals with hate crime. Undoubtedly, a wide spectrum of crimes are motivated by hate against certain groups of people. Indeed, the Government recognise that fact in relation to aggravated crimes involving race or religion. Many hon. Members have a difficulty with the limitations in the scope of clause 130. There is a lack of logic in arguing that aggravating factors should be applied to some hate crimes but not to others because of the difficulty in applying such a test to the satisfaction of the courts. I acknowledge that there is an argument that proving intent is always difficult. Having such an aggravating factor is a complication in terms of investigation, prosecution policy and how the courts deal with it. Clearly, however, that is not the Government's view, as clause 130 shows.

    Having said that, it seems to us that there is a very strong argument for having a more generalised aggravating factor for hate crime. We are not alone in that. Many other jurisdictions have precisely that, and the wording of new clause 6 is in fact lifted directly from the amended hate crime sentencing legislation dealing with federal crimes in the United States. A similar arrangement also exists in the great majority of individual state jurisdictions in the United States.

    5.15 pm

    Can the hon. Gentleman tell us why he has decided not to include in the new clause the issues of size and age? Is it not just as offensive for someone to be the victim of a hate campaign or a crime on the grounds that they are extremely small, extremely fat or just plain old?

    If a class is discriminated against to the extent of criminal behaviour, there is an argument in that respect. That is not a reduction to the absurd—I hope that that is not the right hon. Gentleman's intention. The reason that we have used the words in question is simply that they have proved to be workable in a jurisdiction that has some similarities to ours, which is not an unreasonable suggestion. If it is possible, however, to identify a group in society that is subject to violent crime in particular on the basis of belonging to that class of society and no other reason, they deserve the protection of the laws and the courts of this country.

    Let me give two examples of areas that are not covered by the present legislation. First, there are homophobic attacks, which are frequent, as we know, and they are recognised by the police and the courts, but they do not appear in statute at present. Secondly, there are crimes against those who have learning difficulties. In that respect, I am indebted to Mencap for its recent survey on the basis of 900 questionnaires. Of those surveyed, 88 per cent. reported being targeted during the past year, 66 per cent. reported being targeted regularly—more than once a month—32 per cent. reported being targeted on a daily or weekly basis, and 47 per cent. reported name calling as a kind of harassment, but only 17 per cent. told the police about it. That is a huge abuse in our society, which should be dealt with.

    I am not satisfied that, however well-meaning the Association of Chief Police Officers' guidance is, it is sufficient to the task. ACPO does a splendid job in providing guidance to the forces and the constabularies of this country, but guidelines should not be a replacement for statute. We have an opportunity to address this issue in this Bill, which we should take, so unless the Parliamentary Secretary is able to satisfy me that the concerns that I have expressed are in her mind and will be dealt with later in the Bill, I am minded to press new clause 6 to a Division.

    I am especially grateful to you, Mr. Deputy Speaker, for your efforts to support the rights of Back Benchers and for providing an opportunity to address one really important issue that has not so far been considered. I refer, of course, to clauses 208, 210 and 211, and the associated Liberal Democrat amendments Nos. 484 to 487, 489 and 490, with regard to life sentences, extended sentences and sentences for public protection of children and young people under the age of 18.

    Those aspects of the Bill are serious, quite mistaken and wrong. It is wrong for adult provisions to be applied to children, and it is important to note that provisions on life sentences, sentences for public protection and extended sentences could apply to 12-year-olds and, potentially, 10-year-olds. It is wrong to apply indeterminate sentences to children and it is wrong and thoroughly inappropriate for there to be circumstances in which it is mandatory for such sentences to be passed. I cannot believe that the provisions are in accordance with the United Nations convention on the rights of the child. Indeed, the way in which the Government operate youth justice is a stain on their otherwise fine record on children and social policy.

    I was delighted to hear from my hon. Friend the Parliamentary Secretary that there will be more work on the principles behind sentencing children. We need a youth justice Bill and a child justice Bill for this country to ensure that we develop a youth justice system with the fundamental principles that children's welfare should be the paramount consideration, that deprivation of liberty should be used only as a last resort and imposed for the shortest possible time, and that any decisions on youth justice should be made in the best interests of the child.

    I am extremely disturbed by evidence from answers to written questions that suggests that the Bill could lead to 30 young people a year being detained for life, 10 young people a year receiving extended sentences and one or two young people a year receiving sentences of detention for public protection. Those figures compare with the 43 young people who are currently serving sentences of detention for life. We would massively increase the number of young people facing very long sentences. I cannot believe that it is appropriate to apply the same provisions to children as to adults. It would not be right in any way for children who had committed very serious offences to have so little prospect of rehabilitation and to be given so little hope for the future. I earnestly hope that the Government will thoroughly review their policy on youth justice—I believe that they will—and create a far better youth justice system for this country.

    I shall try to respond briefly to the points that have been made. The Sentencing Guidelines Council is not intended to overlap with the Sentencing Advisory Panel. The panel will be a more intensive working body that will conduct research and work on public consultation. The Sentencing Guidelines Council will make decisions and its membership will include those who have the credibility in their fields to command respect across the board.

    The hon. Member for Beaconsfield (Mr. Grieve) said that there should be a parliamentary vote on each guideline. That would not be an appropriate use of Parliament's time and expertise because guidelines are likely to be considered for 2,000 offences. Parliament's job is to set out the maximum sentence and to focus on specific concerns, as was demonstrated by the previous group of amendments. It is not, and should not be, Parliament's job to make judgments on sentencing on a day-to-day basis—that would be a rather scary prospect.

    We should recognise both our role and that of the courts. The purpose of the guidelines is to provide a bridge between Parliament and the courts. It is important that the process does not become a parliamentary take-over through an insistence that Parliament must vote on each guideline. It is also important for the process to have the confidence of the judiciary, given that it will have to take decisions on the basis of the guidelines.

    The extension of magistrates' sentencing powers is a vote of confidence in the magistracy. It is right to extend their powers in that way. We have made it clear many times that we take seriously the need to review that before there is a prospect of extending sentencing powers further. There is a proviso to do that through affirmative resolution, which means that the House will have a chance to debate it and vote on it again.

    I am afraid that I do not have time.

    We have made it clear that drug trafficking is a serious offence. We know that drug trafficking on a large scale is linked to organised and violent crime and to some of the most dangerous criminal networks. That is why the strong signal that we are sending on trafficking offences is different from our approach to possession, as reflected in our appropriate response to that offence and related sentencing provisions.

    The hon. Member for Somerton and Frome (Mr. Heath) mentioned hate crimes. He will know that provision has been made to deal with race and religion in the Anti-terrorism, Crime and Security Act 2001. In addition, we recognise that other groups may be vulnerable to attack or vilification. The courts can consider a premeditated attack on a person—perhaps because of their sexual orientation—to be an aggregated offence that merits a more serious sentence. The Government think that the case has not been made for a wider offence given that the courts can already respond and that it would not be appropriate to legislate now.

    I agree that it is right to try to avoid imprisonment for fine default where possible. The courts have powers to introduce community punishment, curfew orders and driving disqualifications when imprisonment might be a possibility. The Courts Bill also introduces new powers that will hit people's credit rating and allow for defaulters' cars to be clamped. We are also considering community alternatives because we have to recognise that some people simply cannot afford to pay. However, magistrates have strongly and repeatedly argued that we need to keep the prospect of imprisonment as a last resort for some offenders who persistently will not pay.

    The hon. Member for Beaconsfield mentioned amendment No. 120, which relates to an offence under trade union legislation. That offence was created more than 125 years ago to deal with workers who breach their contracts by participating in strike action, for example. That has led to only one prosecution in the past 10 years, which resulted in a £25 fine. Frankly, in this day and age it is inappropriate to imprison people for going on strike on the basis of an industrial dispute. I recognise that the hon. Gentleman's party might be keen to lock up strikers, but this is 2003 and we think that it is inappropriate to retain that offence on the statute book, so we reject that amendment and others tabled by the Opposition.

    Question put and agreed to.

    Clause read a Second time, and added to the Bill.

    It being four hours after the commencement of proceedings, MR. DEPUTY SPEAKER, pursuant to Orders [2 April and 19 May], put forthwith the Questions necessary for the disposal of business to be concluded at that hour.