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Coroners and Justice Bill

Volume 712: debated on Wednesday 15 July 2009

Committee (8th Day)

Schedule 13 : The Sentencing Council for England and Wales

Amendment 187AA

Moved by

187AA: Schedule 13, page 149, line 20, leave out “the following members”

I turn now to the amendments that relate to the membership of the sentencing council as set out in Schedule 13 to the Bill. There are five government amendments that I wish to speak to briefly, and I will do my best to respond to the other amendments in this group later in the debate.

The first government amendment, Amendment 187BA, provides that the deputy chair of the council should be appointed from the judicial members. The proposals in the Bill make clear that the chair of the council should be a member of the judiciary. This is simply to ensure that all levels of the judiciary can have confidence that the guidelines are created and issued with the endorsement of experienced judicial members. The one specific role of the deputy is to chair the council in the absence of the chairing member. On reflection, the Government consider that this function should also fall to a judicial member to ensure full confidence by the judiciary in the work of the council.

Amendment 187BB introduces greater flexibility in the appointment of the judicial members. The amendment removes the need for a set number of judicial members at each level of the judiciary and replaces it with a less restrictive requirement that there should be representation from each of the main levels of the judiciary. This amendment means that it is open to the Lord Chief Justice, in appointing the eight judicial members, to decide what the appropriate number for each level of the judiciary should be, subject to a requirement that there be at least one magistrate, one district judge and one circuit judge.

The last substantive government amendment, Amendment 188AA, creates a new post, that of president of the sentencing council. The president of the sentencing council will be, ex officio, the Lord Chief Justice. The president is not a member of the council and does not chair the council. The Gage working group made clear that it considered that role too demanding on the time of the Lord Chief Justice. The Government recognise, however, that the Lord Chief Justice as the head of the judiciary in England and Wales and president of the Court of Appeal Criminal Division should be associated in some way with a body that produces guidance to all levels of the judiciary. This new role of president allows the Lord Chief Justice to be associated with the council and to attend and speak at the council, but does not require him to be involved in the day-to-day running of the council. The nature of this amendment has necessitated some discussion with the Lord Chief Justice, the noble and learned Lord, Lord Judge. While the policy aspects of legislative proposals are for Parliament to decide, the Lord Chief Justice has confirmed that he ought to undertake this role. Amendments 187AA and 188AB are consequential upon the main amendments. I beg to move.

I shall speak to Amendments 187AB and 187BC. Following on from the Minister’s amendments, they are probing amendments relating to the composition of the Sentencing Council for England and Wales as set out in Schedule 13. I understand that there are other amendments in the group in the names of the noble Lord, Lord Dholakia, and the noble Baroness, Lady Linklater, to which we shall come later.

As I said, ours are purely probing amendments. The first is consequential on the second and suggests that four rather than two lay justices should sit on the council, therefore boosting the total number of judicial numbers to 10 compared with six non-judicial members. We have tabled these amendments after listening, with some sympathy, to representations from the Magistrates’ Association. It pointed out that as 95 per cent of all criminal matters appear in magistrates’ courts, inevitably any new sentencing guidelines will have the most widespread effect in those courts. The Magistrates’ Association has thus suggested, perhaps not unreasonably, that its representation should be boosted to recognise the special responsibility it will have in setting out any new guidelines. An added benefit would be to increase the majority of judicial members, who, after all, will be the people with the most direct experience of applying advice on sentencing.

It is possible that the Government have arrived at the perfect combination—it is possible that they have not; we do not know—and have put careful thought into selecting the appropriate proportion of judicial and non-judicial members of the council, but I hope that our amendments will at least provide an opportunity for the Government to explain the reasoning behind their numbering and the proportions that are before us.

My Amendment 188 is grouped with a number of others on the Marshalled List. The Minister will recall that when I spoke during Second Reading he welcomed our contribution on matters relating to the sentencing council, and I hope that he will look favourably at this modest amendment and respond positively.

The Sentencing Council for England and Wales, which the Bill establishes, will have eight judicial members and six lay members. Paragraph 4 of Schedule 13 sets out a number of areas in which the lay members will have experience. These include: criminal defence, criminal prosecution, policing, sentencing policy and the administration of justice, the promotion of the welfare of victims of crime, academic study or research relating to criminal law or criminology and the use of statistics. So far, so good, and we certainly welcome this. It is a logical list of areas in which members of the sentencing council might be expected to have expertise.

However, there is one surprising omission: namely, the list does not include any mention of experience in the rehabilitation of offenders. I have repeatedly raised this issue in your Lordships’ Chamber. It is a very strange omission in view of the requirements in Clause 106(11)(d) that the sentencing council should have regard, among other things, to the,

“effectiveness of different sentences in preventing re-offending”.

It is true that an academic criminologist could contribute knowledge to the sentencing council on this point, but it would surely be more helpful for the council to have input from a member or members with practical experience of preventing reoffending by rehabilitating offenders.

As to the other areas of expertise listed in the schedule, the implication is that lay members of the sentencing council will have had practical experience, not just academic knowledge, of policing, criminal defence, prosecution and the welfare of victims. The argument for the relevance of experience is at least equally strong in the re-education of offenders, particularly as it impacts on the likelihood of reoffending, which is such an important consideration for the welfare of society.

This is a modest amendment, and I am sure the Minister will look positively on the inclusion of the rehabilitation of offenders as part of the membership of this council.

I rise to follow my noble friend Lord Dholakia and also make some suggestions on the composition of the sentencing council. Some of these suggestions may be modest but the membership of the council will to a large extent determine not only what sort of council it will be but also whether the purposes of the council, which we discussed earlier on sentencing, are likely to be fully realised.

We fully support the Government’s recommendations for the Lord Chief Justice to have a sort of hands-off role as president. It seems right and proper for the head of the judiciary to be in this position without being expected to be fully involved at all times. He will be a presence to be called on if it anyone ever judges it necessary. Yet we also support a balance between judicial and non-judicial members.

Sentencing councils in other parts of the world have a range of ways of being constituted, including those which are entirely non-judicial. The voices of non-judicial members who are clearly extremely expert and well informed in their particular fields are equally important in developing the sort of guidance sentencers should have. Their knowledge and direct contact with what is going on in the community and the wider fields of criminal justice will be essential in forming the sort of guidance that is likely to lead to effective sentencing that reduces reoffending.

I must declare that I am not a lawyer in any form. My experience as a sentencer was a few years as a magistrate in the Thames court in the 1980s and a further nine years in Scotland as a children’s panel member until I came to your Lordships’ House. Having worked in various fields within criminal justice, I believe that those skills and experiences relating to the criminal justice world are extremely important in informing the guidance that sentencers need.

We have moved a long way from the exclusivity of sentencers and the monopoly of wisdom on the subject. Admittedly, it may feel uncomfortable to some of them to be consulting with other such non-experts. I well remember in the mid-80s when I arranged for a distinguished judge, Peter Pain—some noble Lords present may remember him—to give a public lecture in the central area of Winchester Crown Court on sentencing. This caused a real frisson among some of his colleagues because in those days judges did not do things like coming out and talking to the great British public so publicly. Now it is relatively commonplace. For example, early on in his tenure as Lord Chief Justice, the noble Lord, Lord Phillips of Worth Matravers, gave a significant lecture at Oxford University on the importance of alternatives to custody and the relative pointlessness of short custodies—one, I regret, that was not organised by myself. It was memorable both symbolically and in what he had to say.

As sentencers move out into the wider world—when they can, busy men and women that they are—they are advised not only within their courts but from outside. We hope that, for example, the problem-solving courts will become a model for the future when judges are involved there and then when decisions on a particular judgment are put in place on the spot. Additionally, increasing work is being done to divert people in trouble away from the courts at all, particularly the most vulnerable, such as women, children and the mentally ill, because it is recognised that it is outwith court that their offending, and their needs underpinning their offending, will be better met, for the public to be freed from their reoffending. People who work at that interface and beyond, with other particular skill sets, have voices that must be heard within the council and in equal measure.

For that reason, I warmly support my noble friend’s amendment for the inclusion of someone with experience in the rehabilitation of offenders, which is not merely theoretical but practical. There is no substitute for first-hand knowledge of the realities and their relevance and usefulness to particular situations. Of course, the reality sometimes does not tally with what the theory might initially have suggested.

It is extremely important that someone with experience of children and young people from the youth justice world is included. We have a terrible record in this country on how we deal with children and young people. It is a source of continuing shame that we, alone in the rest of Europe and many other parts of the world, actually lock up children as young as 12 in that part of the prison estate called secure training centres. Most of these children have a range of the most desperate situations and problems and are the most vulnerable in society; they also commit some shocking offences, but it is vital that their needs are met, first and foremost, as in Scotland through the children’s panels, rather than through the punitive ethos of the STCs, whose effectiveness with regard to reoffending and public safety is the worst in the whole estate.

I sincerely hope that no one in this House does not agree that how we deal with children, starting with our own, is simply not the same as it is for adults. In the world of offending, it needs real expertise and understanding, which goes far beyond those of us uninvolved in that world. We currently have more than 6,000 children and young people in prison, including the YOIs, whose offending may on occasions be awful, but whose circumstances are equally and desperately awful. I like to think that, with someone with the right knowledge and expertise on this council, we might have a chance to get things a little more right than we do at the moment.

Lastly, my other amendment in this group may seem inappropriate to some, but it contains a serious suggestion, and I hope and expect that we will get some serious discussion on it from the Government. I suggest that a representative of the media should also be included in the non-judicial part of the council. The role of the media in the public perception of law and order, the state of our criminal justice system and the understanding of the work and effectiveness, or otherwise, of our judiciary is a huge topic, which has consumed endless man and woman hours of discussion and miles of column inches—too much for this part of our debate to really do justice to today, if noble Lords will excuse the pun.

It is a given that neither people in the media nor the public at large have much confidence in our criminal justice system, and even less understanding, yet it is the one that informs the other more than any other means of communication. Confidence is rooted in understanding, which can only grow with knowledge. At the moment, the principal source of knowledge that most people have is through the press, radio and TV. I illustrate that with headlines such as “Soft lives and crimes of the lenient judges” in the Sunday Times, “Shocking figures show judges are jailing fewer criminals” in the Daily Mail, or “Top cop gunning for ‘soft’ judges” in the Sun. Is it any wonder that there is not much informed confidence in what is happening in our courts? Perhaps I should also declare an interest as the wife of a journalist so that I can vouch for the fact that many journalists, including those on the Sunday Times, for which my husband worked for many years, are responsible and well informed people. Many in the Chamber may say, “Some of my best friends are journalists”.

Many studies have shown that the public’s perception of crime is that it is rising, so who, for example, would believe that levels of knife crime across the country have remained stable? They show the prevalence of the belief that sentences are too lenient, while at the same time substantially underestimating the proportion of convicted offenders who are sentenced to prison. Indeed, research on attitudes has shown that when the public are given the facts on specific cases with a range of sentencing options, including custody and alternatives, they invariably favour the more lenient ones. Politicians and policy-makers, who also read the Daily Mail as well as the Sunday Times, remain convinced that what the public require of them is to be tough. The current Lord Chancellor has declared himself proud of the fact that this Administration have increased the number of people sent to prison. He hopes that that will act as reassurance and help keep his seat, but does not go on to show how ineffective this is in terms of how many will then go on to reoffend, at what cost, and how much safer we actually are.

I suggest that one media person on the council will not change all that overnight, but could make a seriously needed start in shifting some of these perceptions. It would also offer the opportunity of developing a greater openness and trust between the media and sentencers that could help with the community education role of the council, which I will come to when we discuss Clause 115.

I believe that the amendment offers the much needed possibility for change, and I hope the Government will take it seriously.

I particularly comment—to a large degree, favourably—on the amendments in the group proposed by the Liberal Democrat Members. It seems to me that while making particular points relating to their amendments, both are very keen on the notion that there should be a combination of judicial and non-judicial members with various kinds of experience on the sentencing council. The range of experience on the sentencing council is of great importance in adding value to the experience of the trial judge whose final responsibility is to pronounce sentence—subject, that is, to appeal. Like the Liberal Democrat Members, I very strongly agree with the broad thrust of the Government’s proposals that the council should be composed of a mix of judicial and non-judicial members.

The noble Lord, Lord Dholakia, particularly wanted to add somebody with experience in the rehabilitation of offenders to the range of non-judicial members required in paragraph 4 of Schedule 4. Many years ago I was a member of the Parole Board for England and Wales. I remember distinctly one group of people who were always represented and of great value. They came from the Probation Service. They are specifically the people whom the noble Lord, Lord Dholakia, will have in mind as being particularly experienced with the rehabilitation of offenders. I would welcome that.

I am not quite so sure about the other amendment, and I think that the noble Baroness, Lady Linklater, recognised that the media may cause difficulties. My main point in relation to youth offending and the media—which the noble Baroness emphasised—is that there are only to be six non-judicial members; the amendments do not seek to change that. Seven different levels of experience are already specifically mentioned in the schedule and we might have eight, nine or 10. There is nothing necessarily wrong with that because the choices can be made from among those. However, if I were to give a preference of adding or not adding, I would add, for the reasons I have mentioned, the proposals of the noble Lord, Lord Dholakia, but leave aside those recommended by the noble Baroness.

I also want to say a few words in support of what has been suggested by the distinguished Liberal Democrat Peers on this matter. I was a Lord Chief Justice who, unfortunately, had the burden of chairing the former Sentencing Guidelines Council. I had great hopes for it and thought that it was one of the most positive things that had happened recently in the sentencing area. Equally, I accept that for the Lord Chief Justice to be a regular member and chair of the Sentencing Guidelines Council is not desirable. It takes up far too much of his time. I can well understand the amendments proposed by the noble Lord, Lord Bach, in that respect.

We found that one of most difficult tasks that the Sentencing Guidelines Council had was to ensure that when the guidelines were issued, they were not immediately rubbished by the media. I can well remember the times that I tried to explain to the media that these guidelines were very sensible and were the product of a great deal of research and very hard work by the council, yet they were given a very rough reception. That damaged the ability of the guidelines to achieve their objective. Therefore, having someone who understood the workings of the media could be of value to the council. I do not say that you have to have someone with that experience but I certainly see nothing wrong with it being a factor that makes someone eligible to be a member of the council.

The other two suggestions speak for themselves and my taking up time encouraging their inclusion is not needed.

Briefly, I support and second what the noble Baroness said about the treatment of, and highly punitive approach to, children in the criminal justice system in this country. I commend the Government for the steps that they have taken to try to improve the criminal justice system in the way that it treats children and their endeavours to keep children out of the criminal justice system through Care Matters: Time for Change and Every Child Matters.

However, we start from an extraordinarily low base. UNICEF has identified us as the worst performing developed country in terms of the welfare of children. The Church of England’s good childhood inquiry again identified how troubled many of our children are, particularly in this country, where there are very high levels of family breakdown. So often we are punishing our children because of their family backgrounds; because their parents are alcohol-dependent or drug-dependent; because they are bereaved and have lost a parent; because their parents have broken up; or because they belong to a generation-after-generation dysfunctional family.

That is not to say that, for instance, those under 14 should not be treated firmly and made responsible for their actions, but we should take a more welfare-based approach to their needs. Most other countries have a minimum age of criminal responsibility above the age of 14. I am very concerned that many of these children, in particular those under the age of 14, believe that it is their responsibility when their parents break up; when they feel unloved; when they see their parents fighting with one another. Working with children, I am so familiar with this. The child believes, “It is my fault that my family is not working”. That is the nature of being a child: one imagines that the world revolves around one and that one is responsible for these things. By branding them as criminals at the age of 11 or 12, rather than choosing to use a welfare-centric approach, one is reinforcing the feeling that they are a criminal, guilty as charged and responsible for how their family does not function properly.

I strongly second what the noble Baroness has said about the overpunitive nature of our society. This is well reflected in the international surveys such as that done by UNICEF. If we just look at the care system in this country, which we all recognise has failed our most vulnerable children, and look in the mirror, we have to see that unfortunately, historically, we have not treated our vulnerable children with support and understanding but with a lack of understanding and an overpunitive approach.

For the reasons that have already been given, I particularly support the idea that somebody with experience of youth offending should be on the Sentencing Council. I declare an interest as patron of a secure unit, which does very good work and which many of the young people, boys and girls, do not want to leave. It is the only secure place that they have had in their entire lives. It is important that that aspect of sentencing should be in the forefront in the minds of the members of the sentencing council. I very much support it.

I follow what the noble Lord, Lord Borrie, said. He pointed out that, in the selection of people eligible for appointment as non-judicial members, not all the members from those disciplines have to be represented. It strikes me that people who have experience in the use of statistics, or are concerned with academic study or research relating to criminal law or criminology, are the sort of people who could give evidence to the Sentencing Council and help it in its task. I would have thought that that was much less significant in the formation of policy, providing that they were there as advisers, than having people with experience of rehabilitation of offenders, youth offending and the media. It would be highly desirable to try to tie in the media to what the Sentencing Council is doing, and to try to end the desperate division that currently exists between the media’s perception of what happens in court and what actually happens.

Amendments 187AB and 187BC in the name of the noble Lord, Lord Henley, refer to the judicial membership of the council and suggest that we should add two more magistrates to the membership, which would increase the judicial membership from eight to 10 members and the overall membership from 14 to 16. The noble Lord would not have had the benefit of seeing the government amendments to which I have spoken today, which were tabled at approximately the same time as his. They will remove the requirements for a set number of members at each level of the judiciary while ensuring that there is at least one magistrate, one district judge and one circuit judge.

Of course, under our amendments it is open to the Lord Chief Justice to nominate the judicial members in the balance of numbers that he thinks is appropriate for the council. In this way, the overall membership of the council remains at 14 and the balance between the judicial and non-judicial membership—8:6—remains the same, with a small judicial majority.

The Government are aware of the important role that lay magistrates play in our criminal justice system. Of course magistrates should be represented on the council. Under our amendments, there must be at least one magistrate, with an option open to the Lord Chief Justice to appoint more. We believe that conferring the discretion on the Lord Chief Justice is a better approach, on balance, than prescribing a set number of magistrates and judges at each level of the judiciary to sit on the council.

Before I turn to the other amendments, I thank all noble Lords for their general support for the approach that we have adopted in this part of the Bill regarding the make-up of the council. Not least, I thank the noble and learned Lord, Lord Woolf, with his experience in this field for what he had to say about the role of the Lord Chief Justice in the sentencing council.

What I am going to say is similar to what my noble friend Lord Borrie suggested a few minutes ago. We accept Amendment 188, tabled by the noble Lord, Lord Dholakia, which seeks to add to the skills that the Justice Secretary considers in appointing non-judicial members of the council experience of the rehabilitation of offenders. The importance of placing emphasis on the rehabilitation of offenders has been raised on both sides of the Committee, not least by the noble Baroness, Lady Linklater, in our debates two days ago. The Government recognise the importance of rehabilitation and reducing reoffending and agree that skills in that field should be considered in the appointment of non-judicial members of the council. So we welcome and support Amendment 188.

We are not unsympathetic to the other amendments, but we do not think that the case is really made in either of the two fields that the noble Baroness refers to. Let me try briefly to explain why. Amendment 188A would add to the skills non-judicial members’ experience of the media. While I recognise that it is important for a body such as the council to communicate well with the public and the media, we do not think it necessary to include a representative of the media among the non-judicial members of the council. There is a need for public debate on sentencing and how sentences are reported, but we are not persuaded that a media representative on the council is the way to address this. First, the council itself will need specialist media staff to deal with media interest in this field. Secondly, many of the non-judicial members in their own right, by virtue of their current positions, will have considerable media experience. So we do not feel it necessary to put that in the Bill.

As far as youth offending is concerned, no one doubts the importance of dealing with young offenders, but the list of skills of non-judicial members, as my noble friend indicated, already includes experience of youth offending. I will give two examples. The member with experience of policing will surely have experience of youth offending. Also, I would expect the member with experience of sentencing policy and the administration of justice to have experience of sentencing youths. While recognising the good intent behind the amendment, we do not think that it is necessary, given the range and depth of experience that we would expect from the non-judicial members of the council. We are happy to accept Amendment 188 but I ask other noble Lords not to press their amendments.

The other noble Lords are the noble Lord, Lord Henley, and I. Would the noble Lord, Lord Henley, like to go first?

I do not have my name down to Amendment 188, which is in the name of the noble Lord, Lord Dholakia. That is the amendment that the Minister said that he was happy to accept.

I was not expecting the noble Lord to accept my amendments, which, as I stated, were probing amendments to ask the Government to explain their rationale, which they have done. They have also set out the changes that they want to make in their own Amendment 187BB.

It is with a heavy heart that I say that I did not necessarily expect the Government to accept my amendments, but I wish that they had ears to hear. The fact that my amendment is supported by, of all people, the noble and learned Baroness, Lady Butler-Sloss, should not be ignored by the Government. Moreover, the support of the former Lord Chief Justice, the noble and learned Lord, Lord Woolf, for the concept of media expertise is also worth a second thought. I shall consider what the Government have said but I should add that experience of policing does not give you insights into and knowledge of the needs of children and their welfare that I have discussed. However, as I say, I shall consider this further and possibly come back to it.

Amendment 187AA agreed.

Amendment 187AB not moved.

Amendment 187B had been withdrawn from the Marshalled List.

Amendment 187BA

Moved by

187BA: Schedule 13, page 149, line 27, leave out from “appoint” to end of line 33 and insert—

“(a) a judicial member to chair the Council (“the chairing member”), and(b) another judicial member to chair the Council in the absence of the chairing member.”

Amendment 187BA agreed.

Amendment 187BB

Moved by

187BB: Schedule 13, page 149, line 35, leave out sub-paragraphs (1) and (2) and insert—

“(1) A person is eligible for appointment as a judicial member if the person is—

(a) a judge of the Court of Appeal, (b) a puisne judge of the High Court,(c) a Circuit judge,(d) a District Judge (Magistrates’ Courts), or(e) a lay justice.(2) The judicial members must include at least one Circuit judge, one District Judge (Magistrates’ Courts) and one lay justice.”

Amendment 187BB agreed.

Amendment 187C not moved.

Amendment 188

Moved by

188: Schedule 13, page 150, line 20, at end insert—

“( ) the rehabilitation of offenders”

Amendment 188 agreed.

Amendments 188A and 188AZA not moved.

Amendments 188AA and 188AB

Moved by

188AA: Schedule 13, page 150, line 23, at end insert—

“President of the Council(1) The Lord Chief Justice is to have the title of President of the Sentencing Council for England and Wales.

(2) The President is not a member of the Council.”

188AB: Schedule 13, page 151, line 4, leave out “2(1) or (2)” and insert “2”

Amendments 188AA and 188AB agreed.

Schedule 13, as amended, agreed.

Clause 105 agreed.

Clause 106 : Sentencing guidelines

Amendments 188B and 188C not moved.

Amendment 188CA

Moved by

188CA: Clause 106, page 65, line 20, leave out paragraph (b)

In moving Amendment 188CA, I wish to speak also to Amendment 188CC. I understand that we will also be debating government Amendment 188CB, and Amendments 188D and 191ZC in the name of the noble Baroness, Lady Linklater.

We are now on Clause 106, which is headed “Sentencing guidelines”. These amendments deal with subsection (11) and the matters to which the sentencing council must have regard in exercising its functions. My two amendments seek to delete two paragraphs from the subsection. The noble Baroness seeks to delete one of those paragraphs and to insert two new paragraphs in its place. The Government are adding a further paragraph.

We believe that these measures are important and raise matters of constitutional propriety. As the Committee will be aware, Clause 106 sets out what sentencing guidelines the sentencing council must prepare for courts to have regard to. Later, we shall debate amendments in the names of the noble and learned Lord, Lord Lloyd, and the noble Earl, Lord Listowel, which seek to clarify what the courts must do. However, we must first consider what the sentencing council does. It will draw up guidelines for sentencing which—even if we dispute that the courts must follow them and say instead that they should have regard to them—will have a real impact on decisions made by judges and magistrates when handing down sentences. It is crucial, therefore, that the guidelines are drawn up in the interests of justice and not used as a back door for the Government to interfere with the discretion of the judiciary. That is why some of the provisions in Clause 106 have given us cause for concern.

Subsection (11) sets out, as I said, the matters to which the council must have regard when setting sentencing guidelines. Paragraph (b), which is the first one that we wish to delete and would be removed by Amendment 188CA, says that the council must have regard to,

“the need to promote consistency in sentencing”.

At first glance, that seems entirely unobjectionable. It is a frequent complaint that sentences appear to make little sense or that there is wide disparity in the sentences handed down by different courts in different parts of the country as punishment for the same crime. However, a closer analysis would tell us what we already know: every crime is different; it involves different defendants, different victims, different motives and so on. It is to respond to those unavoidable differences that we rightly allow—indeed, demand—that the judiciary be flexible and exercise its discretion when sentencing. The same should apply to the council. While it may be acceptable for the council to set parameters within which judges can exercise their discretion, we would be entirely opposed to any attempt to try to straitjacket it by setting overly restrictive guidelines in a misguided attempt to achieve the impossible—that is, uniform sentencing for a kaleidoscope of different circumstances. We need the Government to show that they are alert to the risk of interfering with judicial independence, however indirectly it might appear to be happening.

The second amendment that I have tabled—Amendment 188CC—would remove paragraph (d), which the noble Baroness will also seek to remove but then reinsert in a slightly different manner in the form of two new paragraphs. We believe that the provision is an unacceptable attempt to shove problems that are properly the province of the Executive and the legislature into the field of the judiciary. Working out how much money is available is obviously a job for the Government, for which they need to seek the approval of Parliament. Money matters should be debated and decided in another place principally and, to a lesser extent, by us here. To put pressure on judges to change their sentences because the Government have run out of money, as we understand they are about to do, is not something that we could support.

The report produced by Lord Justice Gage considered whether a duty should be placed on the Sentencing Guidelines Council to have regard to Parliament’s intentions on capacity, alongside the other matters to which it must have regard. Such a duty would oblige the council to have regard to this new factor alongside the others to which it must already have regard. I understand that the working group was divided as to the advantages and disadvantages of this proposal, but a majority was against. The report stated that those in the in the working group,

“who do not favour imposing this duty on the SGC believe that to do so would inevitably lead the SGC to consider matters of policy relating to resources, which are the province of Parliament. For instance, in the event that supply and demand appeared in danger of being out of balance, the SGC might have to consider ways in which the guidelines could be drawn up to take this into account … They believe that leaving Government and Parliament to choose how to address this imbalance better fits the appropriate relationship between Government, Parliament, the SGC and the judiciary”.

The majority of the working group believed that the disadvantages of placing a duty on the SGC to have regard to resources outweighed the advantages. Accordingly, in its view, no such duty should be placed on the SGC. The report concludes in paragraph 9.16 that it would be inappropriate to place such a duty on the SGC and makes no such recommendation. We endorse that view. I beg to move.

If I may respond, I know we have a secondary rewriting of this amendment, but I thought I might add something to this discussion. The Minister says that he is in favour of consistency, but in reading the amendment, he will understand what I mean when I say that it is a lawyers’ amendment and misses the point about the value and importance of a framework such as the council would be expected to lay down.

We believe that consistency is important even within the parameters of judicial discretion. In 2006, a total of 70,000 prisoners were sentenced to immediate custody for 12 months or less. In magistrates’ courts, the average sentence length for immediate custody was 2.5 months in 2007. This current overuse of custody with short sentences itself represents an inconsistency of practice in relation to government policy; namely, that the use of custody should be a last resort only for the most dangerous, violent and prolific offenders. It is also at odds with practice across most of Europe. It is inconsistent with the aim of effectiveness and with the goal of preventing reoffending, since we also know that almost half of all offenders will reoffend.

Short sentences, of all sentences, are recognised to be almost completely ineffective. The noble and learned Lord, Lord Phillips, when he was Lord Chief Justice, was particularly eloquent on the wastefulness, in every sense, of short sentences. The level of custodial use, by comparison with so many other countries, would indicate that, as a generality, we are getting it wrong—we are, indeed, being very inconsistent. These inconsistencies are then compounded by the range of custody rates for similar offences across England and Wales, as published by the Ministry of Justice in 2006. These range from 6 to 16 per cent in magistrates’ courts and from 45 to 68 per cent in the Crown Courts. The variations were not well explained by differences in the kinds of cases being sentenced.

Sentencing differentials for children, in the data from the Youth Justice Board in 2007, also differed significantly between roughly comparable areas, reflecting differences in attitudes by sentencers. These ranged from Liverpool at the top end, with 11.8 per cent of all disposals being for custody, and Newcastle at the bottom, with 2.1 per cent of all disposals, with Birmingham being roughly in the middle with 8 per cent. Clearly, local conditions have a part to pay, but these are children’s lives that are at issue and these levels of inconsistency are hard to justify. We must not forget that these inconsistencies, coupled with the negative perceptions of disparities, have fed the damaging lack of public confidence we have been considering and argue for a greater alignment of guidance and practice.

I apologise for rising again, but I think that the importance of what the Sentencing Guidelines Council will be doing means that it is worth while taking time and looking carefully at what message will be given as a result of changing what appears in subsection (11). I urge the Government not to amend either paragraph (b) or (d). In saying that, I urge that consistency is one of the most important aims and objectives of sentencing. Nothing can be more unjust than to have two persons who commit an offence in circumstances which are indistinguishable, where the backgrounds are indistinguishable, but they get different sentences. If you go to the Court of Appeal Criminal Division on any day of the week, I would think that your chances of hearing sentences being adjusted by that court to achieve consistency are very high.

As to the cost of different sentences and their relative effectiveness in preventing reoffending, surely those are very material considerations. I have not had the advantage of reading carefully what the committee mentioned by the noble Lord, Lord Henley, was referring to. I could understand the passage that he quoted if it dealt with the question of whether the resources available to the court should be taken into account. I understand an argument that says that question of the resources that should be available is a matter for Parliament, but I do not understand why it should necessarily apply to paragraph (d).

Effectiveness in sentencing is surely what we are trying to achieve. If there is a possibility of a less expensive sentence achieving exactly the same, or something more praiseworthy, as one which is more expensive, it does not seem rational—I say that respectfully—to impose a more expensive sentence in that situation. I have in mind, in particular, non-custodial forms of sentence, as against custodial forms.

I hope it is now generally accepted that a short sentence of imprisonment is unconstructive and a very bad use of resources. On the other hand, I should have thought that it was general policy on the part of sentencers that where you can achieve what is desired by a non-custodial sentence, then that is what you should do, if you are sentencing well. I am afraid that if we remove subsection (11)(d), it will be taken as an indication that what I have just said is not the appropriate approach towards sentencing. I respectfully submit that that would be an error.

I support the observations of the noble and learned Lord, Lord Woolf, and urge the Government to resist the suggestion that subsection (11)(b) or (d) should be removed. In relation to subsection (11)(b) and the need for the sentencing council,

“to have regard to … the need to promote consistency”,

I do not understand the promotion of consistency to be the enemy of flexibility if, and in so far as, flexibility is appropriate in the circumstances of individual cases. Surely the promotion of consistency is an important objective for the sentencing council, because it needs to ensure that the sentences are clear and that all available options are there for the sentencer to ensure that the circumstances of the individual case can be met and that arbitrary distinctions are therefore avoided.

As to paragraph (d), the relevance of the cost of different sentencing and the relative effectiveness in preventing reoffending are surely core objectives for the sentencing council. It must not be required to conduct an academic exercise. It is absolutely vital that it has regard to the real world and to the real impact of the sentencing options that it is considering.

This group of amendments focuses on the matters which the sentencing council must have regard to when exercising its functions in relation to the preparation of guidelines. Government Amendment 188CB seeks to recognise the importance of the impact of sentencing on victims of crime. During the Second Reading debate, noble Lords on all sides of the House urged the Government to take into account the impact that sentencing has on the victims of crime. That is an important issue and we believe that our amendment will add to the factors to which the council must have regard when considering guidelines a need to consider,

“the impact of sentencing decisions on victims of crime”.

This is a straightforward and effective way to ensure that the council has regard to that matter.

I am very grateful to both the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick, for their support of the Government’s rejection of Amendments 188CA and 188CC in the name of the noble Lord, Lord Henley. I do not think he is entirely surprised by my response. They would remove the duty on the council to have regard to the need, when drawing up guidelines, to promote consistency in sentencing and the need to consider the cost of different sentences and their relative effectiveness in preventing reoffending.

Both of those factors are well understood by the current Sentencing Guidelines Council. Both appear in the exact same wording in Section 170 of the Criminal Justice Act 2003 under which every guideline created by the current Sentencing Guidelines Council has been considered. The requirement to consider these factors has not, to our knowledge, caused the Sentencing Guidelines Council any particular difficulty. I argue that the concepts are well understood. I go further and say that for the new sentencing council not to take those factors into account would be a severe backward step in the development of sentencing guidelines. As regards consistency, I would ask whether guidelines which do not promote consistency, and in that way justice, could be considered as guidelines at all. I have no hesitation in saying that we invite the noble Lord, Lord Henley, to withdraw his amendment.

Amendment 188D, in the name of the noble Baroness, Lady Linklater, would split cost and relative effectiveness into two separate factors to be considered. We recognise the importance of assessing the cost effectiveness of sentencing disposals. We are not talking here about the cost of individual sentences in individual cases. The use of the phrase,

“the cost of different sentences and their relative effectiveness”,

is one which is understood by the current Sentencing Guidelines Council and the same formulation appears in Section 170 of the Criminal Justice Act 2003.

The noble Baroness’s Amendment 191ZC also splits cost and effectiveness of sentences into two factors of which the council must promote awareness. Splitting the phrase into two changes the meaning in a way which, we believe, could lead to the council being required to consider inappropriate factors such as the availability of resources. This amendment would also remove—presumably this is not the intention—the current paragraph (c) and the encouragement of the council to promote public awareness of the operation and effect of guidelines. We agree with the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick, who say that as far as these matters are concerned, the Government are right in Clause 106(11).

It seems fairly obvious that I do not have the support of the Government on these amendments, but that is not an unusual position for me to be in. It is also fairly obvious that I do not have the support of the noble and learned Lord, Lord Woolf, which seems to be somewhat more important. My noble friend has suggested that I test the opinion of the Committee but I am not sure that would be a good idea. It might be simpler if I just put up my hands and withdraw the first of the two amendments.

I want to consider the second amendment a bit more and, having thought about it further and redrafted it, come back to it later. For the moment, the best thing for me to do is to beg leave to withdraw Amendment 188CA.

Amendment 188CA withdrawn.

Amendment 188CB

Moved by

188CB: Clause 106, page 65, line 20, at end insert—

“( ) the impact of sentencing decisions on victims of offences;”

Amendment 188CB agreed.

Amendment 188CC not moved.

Amendment 188D

Moved by

188D: Clause 106, page 65, line 22, leave out paragraph (d) and insert—

“( ) the relative effectiveness of different sentences in preventing re-offending( ) the cost of different sentences”

This amendment has in a sense already been spoken to by the Government but it is next in the grouping. I add a comment in support of the previous government amendment, because I want to have on the record an important implication of it. Amendment 188CB was to do with,

“the impact of sentencing decisions on victims of offences”.

It goes without saying that as part of the sentencing guidelines the council must include the impact of sentencing decisions on the victims of offences. We have constantly restated that everything that prevents reoffending has a direct impact on the victim. The more that they and we can feel secure, the better it will be. That is principally through the use of effective and robust community sentences, as the noble and learned Lord, Lord Woolf, the distinguished former Lord Chief Justice, just said. In fact, we would favour putting subsection (11)(d) at the top of the list of the council’s considerations. In particular, it seems to us that it would also open the door to the greater use of restorative justice, something which has not been mentioned in this context, which probably has the most direct impact of all for a large number of victims. It is a subject that has been widely discussed, analysed, piloted and promoted—most notably, of course, by the former chief constable of the Thames Valley Police, Sir Charles Pollard. The evidence for giving closure to victims following an offence is powerful, and the case for it generally is equally powerful.

However, it remains to be rolled out more generally and enthusiastically by the Government. I urge the Government to accept that as part of their responsibility for the future. Of course, it would require commitment and a certain amount of expenditure on training people, and so on, but I point out that it is part of the toolkit in many areas of the country, especially some police areas, in a relatively routine way, and has been surprisingly useful in schools and communities. If that were to be the outcome of the government amendment, it would be really significant and powerful.

I move to our amendment on effectiveness and cost. We believe that splitting the two is a small but significant amendment. Effectiveness in preventing reoffending, which we have already discussed at length, should be considered separately from cost, although one may reinforce the other. The same is true when it comes to the council promoting awareness more widely to treat the two elements of effectiveness and cost as distinct. It is helpful to consider what is meant by cost in this context. Is it simply financial or are we talking about social and human cost, and to what are they related? I certainly do not agree with the Government that it is not just the availability of resources that they should require the council to consider.

The report of the New Economics Foundation last year, for example, considered women offenders and highlighted how the criminal justice system’s focus on short-term control and narrow reoffending targets is actually costing us more in the long term. Prison costs much more than the community alternatives, which are much more likely to turn lives around. That report suggested that a body similar to NICE, which has helped to prioritise cost-effective treatment in the health service, could be applied to the criminal justice system.

The Corston report recommended setting up small secure units so that women can be nearer to home and family, as well as a network of support and supervision centres to administer community sentences. They may cost money initially, but in the long term they are not only cost-effective financially, but far cheaper in social and human terms, when contact with children can be maintained, as well as addressing the offending behaviour. For every pound invested in these effective alternatives, it has been calculated that society benefits by £14. If reoffending were reduced by just 6 per cent, the saving to the state in one year would equal the cost of setting up the whole system. The human cost is, of course, difficult to measure, but 160,000 children lose a parent to prison each year and at a stroke they become more at risk of being sucked into the criminal justice system themselves. Some long-term investment in their mothers would pay dividends in savings to society.

This sort of long-term view does not come naturally to politicians, I acknowledge, least of all in a recession, but we must keep these issues in the front of our minds if we are not to go on paying an increasingly unacceptable human price in the way we deliver sentences.

I very much support restorative justice, but it seems to me that it can very well be regarded by the sentencing council within the existing wording of subsection (11)(d). If I may respectfully say so, I do not really see the point of dividing paragraph (d) in two. I shall say no more, other than to agree with the noble and learned Lord, Lord Woolf, in his approach to the point on costs.

I am prompted by what the noble Baroness, Lady Linklater, has said to ask the Minister whether it might be possible to include a paragraph requiring the sentencing council to consider the impact on family life. I imagine that this is not possible, but I would be interested to know how far some of the problems identified by the noble Baroness, Lady Corston, in her report have been remedied. For instance, she identified clearly that women were being given harsher sentences than men for similar offences. The report also discovered that only 8 per cent of children remained in the same home when their mothers had been removed to custody. I believe that it was 8 per cent; it was certainly under 10 per cent. It really causes such an upheaval for children when their mothers are given custodial sentences. I have two questions. First, is it possible to include a provision on the impact on families? Secondly, do courts now treat men and women equally, as they have not done in the past? I apologise for not giving notice to the Minister of those questions. I would be very glad if he would care to write to me.

I thought that I had dealt with these two amendments earlier, but I clearly had not. Let me say, at the risk of repeating myself, that we agree with the noble and learned Baroness, Lady Butler-Sloss, about the advantages of keeping these five matters in subsection (11) in their current order, not least because they are understood, having been used for a number of years. That does not, of course, mean that the council should not have regard to other matters, including those raised by the noble Earl, Lord Listowel, and by the noble Baroness, Lady Linklater. We recognise the importance of assessing the cost-effectiveness of sentencing disposals. I repeat that we are not talking about the cost of sentences in individual cases.

The problem with Amendment 191ZC, which relates to Clause 115, is that it would remove subsection (2)(c), which encourages the council to promote public awareness of the operation and effect of guidelines. I do not think that the noble Baroness would want us to do that.

I am grateful for the Minister’s reply. Will he write to me on the last point, which is whether there has been progress, since the Corston report, on the treatment of women and men on an equal basis and on parity of sentencing? If I remember the report correctly, women were clearly being treated more harshly than men for similar offences.

I thank noble Lords who have taken part in this short debate. When I referred back to the Government’s amendment on the impact of sentencing decisions, I wanted not to change anything in the Bill but to draw out in discussion a very positive implication. I was with the Government on that. Clearly there is not a lot of support for separating effectiveness and cost. I shall think about it and in the mean time I beg leave to withdraw the amendment.

Amendment 188D withdrawn.

Clause 106, as amended, agreed.

Clause 107: Sentencing ranges

Amendment 188E

Moved by

188E: Clause 107, page 65, line 26, leave out subsections (1) and (2) insert—

“(1) When exercising functions under section 106, the Council is to have regard to the desirability of sentencing guidelines which relate to a particular offence being structured in the way described in subsections (2) to (8A).

(2) The guidelines should, if reasonably practicable given the nature of the offence, describe, by reference to one or more of the factors mentioned in subsection (3), different categories of case involving the commission of the offence which illustrate in general terms the varying degrees of seriousness with which the offence may be committed.”

At Second Reading, we made it clear that the Government were willing to consider amendments, or table our own amendments, that improved and clarified these provisions. That is what these amendments, which relate to the format of sentencing guidelines, seek to do. The sentencing council provisions in this Bill sought to replicate the current practice of the Sentencing Guidelines Council in regard to the format of guidelines. In that way, the provisions reflected the fact that the current Sentencing Guidelines Council guidelines subdivide an offence guideline into levels of seriousness, so that, for example, in the guideline on robbery there are three sentencing levels based on the nature of the robbery offence.

There has been some concern, however, that the Bill as drafted would require a set format for council guidelines. This, it has been argued, may lead to unforeseen difficulties if some less common offences do not lend themselves to this format. The Government sought to introduce flexibility in this regard in amendments tabled in the other place, but the further changes contained in Amendments 188E to 188X make the flexibility contained in Clause 107 clearer.

This further flexibility starts with government Amendment 188E, which redrafts the first two subsections of Clause 107, emphasising that it is desirable, but not mandatory, that guidelines be formatted in the way set out in the rest of Clause 107. In this way, the amendments ensure a balance between the desirability of having guidelines that subdivide guidelines and provide starting points, because that format provides guidance to sentencers and transparency to victims and offenders, and the option for the council to opt out of this format if the nature of the offence is such that it is not reasonably practical to produce a guideline in this format.

The Government’s view is that this amendment ensures that the council will not be hampered in producing guidelines for the widest range of offences. This flexibility is also important when we come, a little later, to consider the duty on sentencers to follow guidelines. The other government amendments reflect this change to the beginning of Clause 107. For example, Amendments 188G, 188K and 188M replace the provision that the council “must format guidelines” with the less onerous “should format guidelines”.

Government Amendment 188F allows the council to refer to factors other than the offender’s culpability and the harm caused in describing different categories of offending in the guidelines. The offender’s level of culpability and the harm caused are currently the main factors that determine the levels of seriousness of an offence in a guideline. The Government appreciate that it may be helpful for the council’s guidelines, for the purpose of illustrating the different degrees of seriousness with which an offence has been committed, to be able to refer to other factors. These other features might also amount to aggravating or mitigating circumstances, so we have tabled Amendment 188F to allow for that possibility.

Amendments 188Q and 188X also allow greater flexibility in the format of guidelines. Amendment 188Q creates new subsection (8A), which allows for different provisions in guidelines if there are different circumstances or cases involving the offence that the guideline covers. This amendment provides more flexibility where, for example, the guideline relates to the sentencing of juveniles, where different sentencing disposals exist.

Amendments 188S and 188V clarify that the intention of the guidelines is to produce starting points within category ranges. Having identified a starting point, sentencers will then consider the individual factors of the particular case, such as aggravating or mitigating factors or guilty pleas, in order to determine the most appropriate sentence to impose on the offender after those factors are considered.

The Government believe that this package of amendments to Clause 107 provides the council with a range of options for producing guidelines, stressing the desirability of having subdivided ranges with starting points but allowing for other formats for different types of offence.

Finally in this group, Amendment 188Y clarifies the provisions of Clause 110 that deal with proposals for guidelines originating from the Lord Chancellor or the Court of Appeal. Clause 110 allows the Court of Appeal, if it is considering a relevant case, to propose to the council that it frames a new guideline or revises an existing guideline. This amendment makes it clear that this power does not prevent the Court of Appeal from continuing to issue guideline judgments.

All these amendments provide more flexibility for the council to enable it to tailor guidelines to particular offences. I beg to move.

I shall make just one brief comment in welcoming these government amendments. As a general rule, when Governments delete the word “must” and replace it with “should”, it is a step in the right direction. As I read these amendments, particularly subsection (2) in Amendment 188E, which states that “the guidelines should”, Amendment 188G, which deletes “must” and replaces it with “should”, and Amendment 188K, I can say that we on these Benches welcome these amendments.

Amendment 188E agreed.

Amendments 188F to 188X

Moved by

188F: Clause 107, page 65, line 36, at end insert—

“( ) such other factors as the Council considers to be particularly relevant to the seriousness of the offence in question.”

188G: Clause 107, page 65, line 37, leave out “must” and insert “should”

188H: Clause 107, page 65, line 41, leave out “under” and insert “in accordance with”

188J: Clause 107, page 65, line 42, after “sentences” insert “(“the category range”)”

188K: Clause 107, page 65, line 45, leave out “must” and insert “should”

188L: Clause 107, page 66, line 2, leave out “under” and insert “in accordance with”

188M: Clause 107, page 66, line 5, leave out “must” and insert “should”

188N: Clause 107, page 66, line 6, at beginning insert “(to the extent not already taken into account by categories of case described in accordance with subsection (2))”

188P: Clause 107, page 66, line 26, leave out “under subsection (6)(c) must” and insert “in accordance with subsection (6)(c) should”

188Q: Clause 107, page 66, line 29, at end insert—

“(8A) The provision made in accordance with subsections (2) to (8) may be different for different circumstances or cases involving the offence.”

188R: Clause 107, page 66, line 31, leave out “under” and insert “in accordance with”

188S: Clause 107, page 66, line 33, leave out “sentence” and insert “starting point”

188T: Clause 107, page 66, line 34, leave out “listed in the guidelines under” and insert “mentioned in”

188U: Clause 107, page 66, line 37, leave out “under” and insert “in accordance with”

188V: Clause 107, page 66, line 39, leave out “sentence” and insert “starting point”

188W: Clause 107, page 66, line 40, leave out “listed in the guidelines under” and insert “mentioned in”

188X: Clause 107, page 66, line 43, leave out subsections (10) and (11)

Amendments 188F to 188X agreed.

Clause 107, as amended, agreed.

Amendment 188XA

Moved by

188XA: After Clause 107, insert the following new Clause—

“Sentencing guidelines: voting

The sentencing guidelines relating to a particular offence must specify whether the offender will be capable of voting at any parliamentary or local government election during the time he is detained in a penal institution in pursuant of his sentence.”

This is essentially a probing amendment related to something that has been raised in this House many times, including recently. It is now more than seven and a half years since the European Court of Human Rights found that the United Kingdom was in breach of the European convention in not allowing prisoners to vote. Those seven and a half years are in stark contrast to the speed with which, for instance, the Parliamentary Standards Bill has been rushed forward to this House and rushed through it.

Eighteen of our fellow European countries allow all prisoners to vote and eight ban some from voting. The United Kingdom is one of only nine which automatically disenfranchise all sentenced prisoners, including Armenia, Bulgaria, Estonia and Romania. However, it is interesting that two countries with far worse human rights records than those—China and Iraq—both allow prisoners to vote.

One thing that has held up the Government from taking the sensible line—this was also reinforced by the European court when the Government appealed against the original decision—is the idea of passing to the sentencers the responsibility of deciding who should or should not have the vote while in prison. My amendment, therefore, is designed to follow the current procedure in France and Germany, where the courts have the power to impose loss of voting rights as an additional punishment. The proposed sentencing council would be exactly the right organisation to decide what guidelines should be issued to sentencers to help them decide, on the basis of the evidence that they have heard, whether or not a particular crime committed by a particular individual should carry with it the additional sentence of removal of the right to vote.

At present, we are in the middle of a second consultation on this issue which is purely around whether the length of sentence should be the determinate of whether or not people should have a vote. That is entirely illogical because, for example, currently a shoplifter who is sentenced to a community sentence is allowed to vote and a shoplifter who is sentenced to custody is not. The way out of this is to remove as many of the illogicalities as possible. Putting the onus on the sentencing council would remove the political concerns—many of which are determined by fear of the media—from something which the European courts have already determined we ought to do.

The amendment is designed to suggest to the Government that they might like to consider this proposal as a sensible way out of a situation that has taken them so long to determine so that we can bring ourselves into line with the direction we have been given, possibly in time for the next general election. I beg to move.

I am sure that the noble Lord, Lord Ramsbotham, knows that his amendment does not have a snowball’s chance in hell of being accepted. It is a probing amendment. I admire him for continuously raising this issue and I am glad to be here to support him in doing so. As he said, this matter has been raised again and again and there is little new that can be said by either the Government or ourselves. However, I should like to mention one or two matters.

First, there is something even more important than everyone’s democratic right to vote, except where there is very good reason to deprive them of their voting rights, and that is the European rule of law. I have said—this has been quoted against me by the Minister in the past—that Britain has a fine record of abiding by the judgments in Strasbourg, and so it has, but this is a disgraceful and lamentable exception which has already exercised members of the Committee of Ministers of the Council of Europe to the point where they are threatening publicity and an interim resolution at Christmas. They will be reading this debate in Strasbourg at their next meeting, just as they have looked at the past proceedings.

The United Kingdom has an obligation under Article 41 of the convention to abide by the judgment in this case. It has another obligation under Article 13 of the convention to provide an effective remedy to everyone whose convention rights are violated. The Government are in breach of their duty under Article 41 and under Article 13. I do not expect everyone in the House to rejoice at the idea of prisoners getting anything at all, I am afraid, but there is a very good democratic reason why prisoners should be given the right to vote as the court has stipulated: that is, it makes politicians more sensitive to what is happening inside our prisons. If Ministers in the prison department understand that prisoners have a right to vote—let us say by postal vote, as they have in Ireland, Hong Kong and Cyprus—they may be more sensitive to the conditions within prisons and the needs of prisoners.

It is wrong for prisoners to have their other civil rights taken away in addition to the deprivation of liberty except for very good cause. There is an argument for saying that those who are guilty of the most heinous crimes should have their civil rights taken away, especially on the recommendation of a court that has tried them—that is part of what is behind the amendment—and one can understand the need for a proportionate response, compatible with human rights, in that context. But to continue a blanket exclusion of any right to vote by any prisoner in custody for any crime whatever is completely unjustified. As the noble Lord said, we are in the minority in Europe in perpetuating that and, even worse, we are in breach of a clear judgment of the court. That is as bad as if it were a contempt of court in this country because Ministers of the Crown were disobeying the binding judgment of a domestic court.

I have nothing to say in favour of the attitude that the Ministry of Justice and the Government as a whole have put forward. They are simply dragging their feet for as long as they possibly can, up to the next election, for fear of alienating the tabloid media that will attack them for being the prisoners’ friend. That is completely unjustifiable and it is time that this country brought our law into conformity with the binding judgment of the European Court. For those reasons, I support what is behind the amendment.

I hope that Her Majesty’s loyal Opposition will not give a knee-jerk reaction to what is proposed. I remind them that the European convention was supported in 1949 to 1950, not by Labour but by the Conservatives. It was Winston Churchill, Harold Macmillan, Maxwell Fyfe and John Foster, the former head of my chambers, who led the campaign in the European movement. It was the Conservative Government, not the Labour Government, who accepted the first optional protocol, which has voting rights within it. So it was not the work of Labour—Labour sought to keep it out when they ratified the original convention. It was the Conservative Government who came to power in 1951 who accepted the first optional protocol.

The Conservative Party stands for the rule of law as part of a deep conservative tradition which quite transcends any populist ideas about prisoners’ rights. I very much hope that the Official Opposition will seek to persuade the Government to abide by their treaty obligation and by the court’s judgment in this case.

Is it not correct that in France those found guilty of serious crimes are very often officially deprived of their civil rights, which may or may not coincide totally with the time they spend in prison, and that this has been the case for a very long time?

That is so in some countries—I think France is probably one. That is a case where the particular individual is being punished not only by the loss of liberty but by the loss of other civil rights including the right to vote because the trial judge who has listened to the facts of the case has decided that, in the particular circumstances, it is right to add that to the punishment. That I can understand. It is in a sense the approach of the noble Lord, Lord Ramsbotham, in his amendment. He says it should be part of the sentencing guidelines. That is a proportionate response focusing on the particular individual. It is not a blanket view that no prisoner should have the right in custody to vote in any circumstances. I hope I have answered the noble Lord.

I rise in the same spirit as the noble Lord, Lord Lester. It will certainly not be the first time I have spoken to an amendment that did not have a snowball’s chance in hell.

I have always been somewhat bemused by why the Government have been so resistant to this ruling, so unprepared to see the link between participation in civic life and rehabilitation and, as the noble Lord, Lord Lester, has explained, so dismissive in this case of their international human rights obligations. The decision of the European Court was not a weird aberration made by a group of people devoid of any common sense. Six out of eight of them in the original judgment came from countries to which democracy had returned only in the past 15 years. They may have had a particular view of the importance of democratic rights. It is not so outlandish to suggest that someone who is imprisoned, for example, for a short time, should still be able to vote. Research suggests that retention of such civic rights can be in a small way conducive to future rehabilitation.

The suggestion by my noble friend Lord Ramsbotham that such a matter be dealt with by a guideline would perhaps get the Government off the hook and enable a responsible body of people to put their minds to it and assess the strength of the Government’s arguments against it. I quote from the European Court:

“The United Kingdom Government had asserted that the voting restrictions on prisoners were designed to prevent crime and punish offenders and to enhance civil responsibility and respect for the rule of law”.

The inclusion of this matter within the work on guidelines would enable it to be considered thoughtfully, related to similar considerations about what should constitute the appropriate penalty for specific offences. It would enable the public to see that the matter had been given serious consideration over a range of cases rather than having been dealt with as a political football. I support the amendment.

I, too, support the noble Lord, Lord Ramsbotham. “Votes for felons” is no doubt not a popular slogan or campaign but it is an important one. The Minister should understand that the Government’s current position is simply a national disgrace, given the importance of the democratic rights we are talking about, the clarity of the judgment of the European Court that the absolute ban is inconsistent with our international obligations and the extraordinary length of time that has now elapsed since the European Court gave its judgment. The Minister, on behalf of the Government, should understand that this is a serious stain on the record of this Government. It is about time that something was done about it. I personally hope that the noble Lord, Lord Ramsbotham, will bring his amendment back on Report. If he does, I will certainly vote for it.

The House will be aware that the noble Lord, Lord Lester, and I do not always agree on a large amount of matters that come before this House. I can agree with him on one thing: the chances of this amendment getting on the statute book. He was right in saying it has no more than a snowball’s chance in hell of being accepted by the Government.

I also thank the noble Lord for his history lesson in the honourable part that my party had in seeing the European Convention on Human Rights come into effect back in the late 1940s and 1950s. I thank him for that lesson but I knew it all already. I remember being informed of all that by our late colleague Lord Renton, who also played some part in these matters.

I admire the ingenuity of the noble Lord, Lord Ramsbotham, in bringing this amendment forward. I warned the Government of this at Second Reading. If they insist on bringing forward these massive Home Office or Ministry of Justice Bills that cover every possible subject, they will find that every other possible subject can be added to them. That is why we have had debates on assisted suicide and all sorts of other matters that were not originally in the Government’s plan.

On the amendment itself, as the noble Lord, Lord Ramsbotham, rightly pointed out, it is now seven and a half years since the European Court of Human Rights case was decided. Since then we have had two consultations from the Government. They seem to be frozen like rabbits stuck in the headlights, unable to decide what to do. It is not for me to say what we will do at this stage because we are not yet the Government. That will come in due course.

I can give the Minister some reassurance that we on this side are unhappy with the idea of extending the franchise to offenders in prison. The Minister will be aware of what my honourable friend Dominic Grieve said on this matter:

“Many people will question whether this is a sensible development”.

One does not need to dismiss that, as the noble Lord, Lord Lester, did, as a knee-jerk reaction to the tabloid press. Often when people say something is a knee-jerk reaction to the tabloid press they are saying they do not like what the majority of the country thinks about these matters. This is a democracy and we have a chance to make up our minds about it. To continue to quote from what my honourable friend said:

“The principle that those who are in custody after conviction should not have the opportunity to vote is a perfectly rational one. Civic rights go with civic responsibility, but these rights have been flagrantly violated by those who have committed imprisonable offences”.

He then went on to demand that the Government allow a parliamentary debate. I appreciate we are having something of a debate now, but this must be a bigger debate in both Houses, that gives MPs the opportunity to insist on retaining our existing practice, that convicted prisoners cannot vote. Having said that, I cannot offer much support for this amendment.

Before the noble Lord sits down, could he explain on behalf of the Opposition whether it is their position that they will abide by binding judgments of the European Court of Human Rights in accordance with Article 14?

As I made clear, my honourable friend has asked for a debate on this matter. As I understand that particular case—the noble Lord, who is much more learned in these matters than I am, will correct me—that judgment does not insist that we automatically give the vote to every prisoner. It would be possible to make some other adjustment, of the manner suggested by the noble Lord, Lord Ramsbotham. We have asked for a proper debate on this matter. That is the right way of deciding these things. A Conservative Government, when they are in power, would then respond accordingly.

Briefly, I immensely admire the motivation of the noble Lord, Lord Ramsbotham, in raising this matter. The issue is not what the public would want or what tabloid editors would say, but whether we are going to be loyal to a determination of the European Court and to our treaty obligations. Vox populi is not vox parliamentari, and should not be so. The Government, for the basest of motives—and I accept that over 12 years they have done many splendid things—have kept this matter back. That goes for the Opposition as well.

There is one argument, additional to that put forward by the noble Lord, Lord Lester, that we should bear in mind with regard to the rightness of the act of giving votes to persons in prison. Persons are sent to prison because they have acted in such a manner and their conduct is so intolerable that they have been placed outside the walls of society, but with the intention some day that they should come back to society as persons who have redeemed those offences. Those persons still remain citizens, and it is right and proper that they should be reminded not only that they have responsibilities as citizens but that they have rights as well. This is one way of driving that message home.

I express my strong support for what has been said by the noble Lord, Lord Ramsbotham, and my noble friend Lord Lester, and everybody else who has spoken in this debate, with the obvious exception of the noble Lord, Lord Henley. Of course, we are not suggesting that all prisoners ought to be given the right to vote, but it seems plain that there is a strong argument that, for example, prisoners approaching the end of their sentences should be allowed to vote and consider the political issues facing him or her and the country when they become free again. Allowing them to vote in those circumstances could be part of their rehabilitation as citizens of the country. In those circumstances, I believe that there is absolutely no argument for saying that the present status quo of no prisoner ever being allowed to vote while being in prison should continue.

I start by congratulating the noble Lord, Lord Ramsbotham, on his immense skill in persuading the authorities that somehow this amendment fitted into this Bill in any way whatever. I congratulate him on his ingenuity, not for the first time. Secondly, he has surprised me, as I thought that he was in favour of blanket automatic enfranchisement, but he is now saying that he now favours the sentencing court playing a major role in deciding whether or not—

If the Minister had read my response to the first consultation document, he would have found this suggestion firmly written in my response.

In that case, I withdraw what I was saying immediately. I was under the impression that the noble Lord was in favour of automatic enfranchisement. I presume that he is not.

As the noble Lord has reminded us, his amendment seeks seek to repeal Section 3 of the Representation of the People Act 1983, and replace the current blanket ban on voting rights for convicted prisoners with a system by which a prisoner’s right to vote is determined by the court that sentenced them. As the noble Lord has reminded the Committee, the European Court of Human Rights in the case of Hirst has ruled that the current statutory prohibition on voting by convicted prisoners was in breach of the convention rights. In response to the judgment, which was delivered in October 2005—which by my estimation is not seven years ago—the Government are undertaking a two-stage consultation on this difficult and sensitive issue. The responses to the first-stage consultation paper indicated that there was no great support for the option of allowing the sentencing court to decide on whether a prisoner retained his or her right to vote.

The Government are not entirely opposed to the principle of allowing the sentencing court to effectively judge each case on its own merits. Indeed, the fourth of the options in the second and current consultation is to allow judges some discretion in enfranchisement. However, this approach needs to be considered very carefully.

As to the substantive issue, let me say a few words about the Government’s approach as set out in the current consultation. Our approach to the possible enfranchisement of prisoners is based on the length of custodial sentence to which a prisoner has been sentenced. The Government consider that, in general, the more serious the offence that has been committed, the less right an individual should have to retain the right to vote when sentenced to imprisonment. Tying entitlement to vote to sentence length would have the benefit of establishing a clear relationship between the seriousness of the offence, or offences, and suspension of the right to vote. Therefore, in its second-stage consultation paper, the Government have proposed four policy options to determine a prisoner’s entitlement to vote, all of which are based on the length of his custodial sentence as handed down, with one partial exception.

Under our first three options, prisoners would automatically retain the right to vote when they have been sentenced to a period of imprisonment of less than one year, less than two years and less than four years respectively. Under option 4, prisoners who have been sentenced to a period of less than two years’ imprisonment would automatically retain the right to vote. In addition, prisoners who have received sentences of more than two but less than four years could apply to be entitled to vote, but only where a judge grants permission in their specific case. This last option allows some element of judicial discretion in determining a prisoner’s right to vote and, in this context, the need for sentencing guidelines to ensure consistency and fairness would remain paramount. This element would apply only to prisoners sentenced to between two and four years’ imprisonment.

When the second consultation has concluded, in September this year, the Government will consider the next steps. It would be premature to introduce legislation before this second consultation has been completed, and before we have had the opportunity to give proper consideration to all the complex issues that an approach to enfranchisement based on sentence length throws up. There will be a need for a UK-wide approach to this issue, and the judiciary would need to be fully consulted, particularly where proposals are being made for judicial discretion in enfranchisement.

I noted that the noble Lord said that this was a probing amendment. I thank him for raising it today and ask him to withdraw his amendment.

I am very grateful for the Minister’s remarks, but could he clarify one matter about the timetable? He said that the consultation would end in September. Let us assume, hypothetically, that the next election is in May. It would be perfectly possible to use a remedial order to accomplish, as one sometimes does, full compliance with the judgment of the court without the need for primary legislation. If the Minister, having had two consultations and having consulted the judiciary, were then to lay a remedial order before both Houses, which would have to be debated and cleared by affirmative resolution, that would enable the matter to be resolved before the next general election. Would that be a matter that the Government would now consider? If they would not consider it, it would mean that it could not happen this side of a general election.

The noble Lord and I have been on this subject of the remedial order before. No, we do not think that this is an appropriate issue for a remedial order; it is an appropriate issue for both Houses to decide whether and how this particular ruling of the European Court of Human Rights should be brought into force. It is not a proper issue for remedial order, in our view.

I am very grateful to all those who have spoken. I must make it abundantly clear that I do not take all the credit for the amendment. The noble Lord, Lord Lester, was closely involved, as were the advisers who drew up the original amendment. There are many who feel, on both sides of this question, that the matter will cause us all some concern until resolved.

My concern about this began some 10 years ago when the then Home Secretary, currently the Justice Minister, told me that prisoners could not vote because they had lost the moral authority to do so. I did not know that people voted by moral authority, and if moral authority was the reason I suspect that there would be many people other than prisoners who were denied the right. It struck me that everyone was on the wrong track; and we are still on the wrong track.

I add to what my noble friend Lady Stern said. If you are encouraging prisoners to rehabilitate and enhance their respect for the rule of law while doing so, it does not set a very good example if the Government are defying the rule of law in practising rehabilitation. I have always thought, in addition to the points made by the noble Lord, Lord Lester, that if the right to vote was there, prisoners would become constituents of MPs and MPs would have to take an interest in the rehabilitation of their constituents, which would raise their interest and involvement in the whole penal system.

Therefore, I accept entirely what the Minister says about timing at the moment. I will read very carefully what was said. I am happy to withdraw the amendment, but with the full understanding that I will seriously consider bringing the matter back on Report. I beg leave to withdraw the amendment.

Amendment 188XA withdrawn.

Clauses 108 and 109 agreed.

Clause 110 : Proposals by Lord Chancellor or Court of Appeal

Amendment 188Y

Moved by

188Y: Clause 110, page 68, line 46, at end insert—

“( ) This section is without prejudice to any power of the appeal court to provide guidance relating to the sentencing of offenders in a judgment of the court.”

Amendment 188Y agreed.

Clause 110, as amended, agreed.

Amendment 188Z not moved.

Clause 111 : Sentencing guidelines: duty of court

Amendment 189

Moved by

189: Clause 111, page 69, line 4, leave out “follow” and insert “have regard to”

The first point that I make in support of the amendment is that there is nothing new about sentencing guidelines. It has always been one of the functions of the Court of Appeal to provide guidelines wherever that has been thought desirable and necessary. However, the absence of a guideline judgment has never meant that judges were, as it were, on their own—far from it. We have always had, as any practitioner will know, Thomas on sentencing—a loose-leaf work in four massive volumes—in which the facts of all comparable cases are set out in great detail. In my view, the existence of Thomas on sentencing is by far the best way of ensuring consistency in sentencing, since it is the most complete record of all the decisions and it is always kept up to date.

Criticism might be made that this is all very well; it is what the judges do for themselves, but it does not reflect the views of the public. That would not be so. From time to time, Parliament takes the view that the sentencing level in a particular type of offence is too low and it takes steps to correct the position. The example that I always give—I am afraid that I have given it before in this House—is causing death by dangerous driving. When I became a judge, the maximum sentence was two years; the maximum sentence is now 14 years. My view happens to be that 14 years is far too high when one compares that offence with other very serious offences, but that is neither here nor there. What matters is that, whenever Parliament has increased the maximum sentence, the judges have always followed suit. That has happened, I think, on every occasion.

In 1998, we had the Sentencing Advisory Panel, whose purpose was to give judges independent advice as to the appropriate level of sentencing and, in 2003, as we all know, we had the Sentencing Guidelines Council. So the judges have not been wanting for outside guidance; we have always welcomed such guidance and we have always had regard to it. Now, for the first time, judges will be obliged to follow the guidelines unless the interests of justice require otherwise. That, to my mind, is a very different thing.

Why are we being asked to change a test so soon after the existing test was approved and confirmed by Parliament in 2003? I remind the Committee of what Section 172 provides. It states:

“Every court must … in sentencing an offender, have regard to any guidelines which are relevant to the offender’s case”.

What is wrong with that? That was the Government’s view as recently as 2003 in bringing forward legislation, which was by no means noted for its liberality or, indeed, for letting judges get on with the job. That was their view then, so why has their view changed? What is the evidence that that existing test, set out so recently, is proving unsatisfactory? Or is there some other reason for making the change? I hope that the noble Lord will answer that question when he replies.

Perhaps I may venture to suggest a possible explanation. The starting point was, I think, the review of the prison system in 2007 by the noble Lord, Lord Carter of Coles. It was difficult, the noble Lord said, to predict the number of prison places that would be required without a structured framework such as exists in the United States in Minnesota and in North Carolina. Only in that way, he thought, would it be possible to forecast the growth of the prison population.

The noble Lord, Lord Carter, reported in December 2007. The same month, the Lord Chancellor and the Lord Chief Justice asked Lord Justice Gage to chair a working party to consider the recommendations of the noble Lord, Lord Carter. The working party unanimously rejected the noble Lord’s central recommendation that we should have a structured framework such as there is in Minnesota. In paragraph 4.24, it said that it would simply not be workable in the United Kingdom. Yet by a majority the working party favoured the stricter test, which is now proposed. In other words, it rejected the reasoning of the noble Lord, Lord Carter, but somehow accepted his conclusion. Why did it do that? It is difficult to say because its reasons are not given. All that it says is that the stricter test now proposed would provide the,

“necessary consistency, transparency and predictability”.

I have already said something on the subject of consistency. The noble and learned Lord, Lord Woolf, is right when he says that consistency is a most important objective. The noble Lord, Lord Pannick, is also right when he says that consistency is not incompatible with a degree of flexibility. In any event, as we all know, absolute consistency in sentencing is unobtainable. If we wanted a greater degree of consistency than we have, we ought to have gone the Minnesota route, which we have not done.

It is therefore difficult to see what reasons the minority, as it were, could have had, but let me take them one by one. I have already mentioned consistency. The next was transparency. I fail to understand how transparency is relevant at all in this connection, but perhaps that, too, will be explained. Finally, it said that this was “necessary for predictability”. In what sense is it “necessary”? Are the Government saying that it is necessary for the judges to be tied down in the way that is now proposed so that the Government may be able to predict the number of prison places that they may need in 2010, 2015 or 2020?

With regard to “predictability”, the working party says, in the next paragraph, that,

“it is not possible for guidelines to control the prison population, as the prison population will depend on a number of factors the most important being the number of offenders brought to justice and the profile of the crimes they commit”.

I would add to that that the number of prison places needed will depend to a even greater extent on how much new criminal legislation is brought forward by the Government, how many new offences are created and things such as the indeterminate sentence for the protection of the public, which, by its very nature, is unpredictable.

Perhaps the Minister will, in his reply, give an estimate of the extent to which the new test that is now proposed will add in any way to the predictability of prison population compared with these other matters. It appears that predictability was the reason why all this started. It is rather like trying to predict the inflow of water through a broken sea valve when the ship is sinking. In the mean time, I respectfully suggest that we stick with the test that we have under the 2003 Act until we have been given some better reason for changing it. I beg to move.

My name, too, is on the amendment. The noble and learned Lord, Lord Lloyd of Berwick, has spoken in relation to judges. I should like to say something in relation to magistrates. The chairman of the Magistrates’ Association has taken the trouble to attend this afternoon to demonstrate, through me, the importance to magistrates of the change that they foresee from including the word “follow” instead of “have regard to”.

As the noble and learned Lord, Lord Woolf, has said, and the noble and learned Lord, Lloyd of Berwick, picked up, consistency is not incompatible with flexibility. However, there is a point at which consistency becomes uniformity and uniformity is when flexibility goes out of the window.

Perhaps I might be forgiven if I tell just one anecdote from a north London magistrates’ court, in which I appeared very many years ago. I was representing a company whose employee had deliberately disobeyed the rules and had been caught; there was an absolute liability. I was hoping to say to the magistrates that this was not the company’s fault and that there should be an absolute discharge. I walked in and the warrant officer, who knew me, said, “Morning, Madam. It’s £10 today”. My goodness me, it was. I sat there and every single case was £10, including that of my company, which had done absolutely everything to prevent their drivers from doing what this driver did.

We have moved on from every case being £10 in the magistrates’ court. Magistrates have very good training on sentencing, among other things. However, like judges, they need to have the opportunity to fit the sentence to the person; they need not only to have the opportunity to recognise the importance of consistency, as magistrates of course do, but also not to be put in a straitjacket. What they feel, and what I want to say on their behalf, is that having the word “follow” instead of “have regard to” will put them, as they see it—and I respectfully agree with them—into a straitjacket. It will not do. I strongly support what the noble and learned Lord, Lord Lloyd of Berwick, has said.

I strongly support what my two noble and learned friends have said. My noble friend Lord Tenby introduced me to members of the Magistrates’ Association in the run-up to this Bill. It is as a result of that conversation that I speak now.

I am concerned that Her Majesty’s Government sometimes, with the best of intentions, too narrowly prescribe the range of actions of professionals on the front line. I am thinking of teachers, social workers and, in this case, magistrates. This micromanagement, as it is commonly termed, has a mournful effect on the morale of professionals and contributes to poorer outcomes and the disillusionment of practitioners. In Amendment 189, I seek to prevent such overprescription. I welcome the Minister’s intentions to ensure that there is a consistency of sentencing, which is something that we all desire. However, as has been mentioned, the clause proposed in the Bill obliges uniformity of sentence, something quite different from consistency and unwelcome.

As my noble and learned friend Lord Lloyd of Berwick has asked, what is the Minister’s evidence for proposing this change to the statute book? The number of short-term custodial sentences—sentences of under six months—has decreased in recent years. Since a peak of 4.9 per cent in 2001, there has been a reduction to 3.9 per cent in 2007. This is a drop in real terms of 25 per cent, despite the number of offenders sentenced increasing by 4.6 per cent. New sentencing guidelines came into effect on 1 August 2008 and magistrates have been most positive in ensuring consistent adherence to them. Since October 2008, the quarterly figures have shown a continued decrease each month on the same period 12 months earlier of between 8 per cent and 15 per cent in the number of prisoners serving short-term custodial sentences. This is despite the number of sentences remaining constant.

As the noble and learned Lord, Lord Lloyd of Berwick, said, what is the basis for changing the law? Paragraph 4.14 of the Gage report, which has been referred to, points out that no information is being collected on the numbers of departures from guidelines or the reasons for the departures. Are we being asked to legislate on the basis of simple anecdote and speculation? The summary of the report notes that many respondents saw,

“a need for a period of stability avoiding further changes to sentencing and a concern that structured sentencing would lead to a fettering of judicial discretion and independence and ultimately to injustice”.

The “interests of justice” test does not reassure me, as, in my view, everything that the Bench does is in the interests of justice and full reasons are always expected to be given for whatever sentences are imposed. Unsurprisingly, the Magistrates’ Association describes this current clause as an insult to the integrity of magistrates. It is strongly concerned that it will frustrate magistrates’ imperative to apply the rule of law in each individual case.

I respect the Minister’s intentions. However, I am concerned that this clause will unintentionally undermine the outcome that we all wish to see. The Government are keen to recruit new magistrates and young professionals, but how will people be encouraged to participate in this decision-making if, as it seems, they will have little input as a result of their decision-making being so tightly prescribed? I look to the Minister for reassurance in his response.

I support those who have put their names to the amendment. I have not, in the past—I have to admit—been an avid reader of sentencing guidelines. However, lately, it is an activity that I have taken up. Most lately, I have read the definitive guideline, Breach of an Anti-Social Behaviour Order. I want to make a few comments on it in order, I hope, to elicit from the Minister an idea of how he sees the guidelines working in practice in everyday life in a courtroom.

When looking at this guideline, I had before me the image of an old, alcoholic man with an ASBO, which says that he must not go into the city centre where the pubs are, and where his presence has been found to be unpalatable. I had that image before me because a number of press reports have come my way of such people breaching their ASBOs. This man wanders into the city centre and is therefore arrested and brought to court for breach. The court then has to deal with him and, to do so properly, as I understand it—I look to the Minister to correct me if I have not understood—the court must follow a 19-page document explaining the law, the meaning of it and the stages that the court has to go through. Under the heading “The decision making process”, the document says:

“The process set out below is intended to show that the sentencing approach for the offence of breach of an anti-social behaviour order is fluid and requires the structured exercise of discretion”.

There follow seven headings. But that is not quite all, because there is another section called, “Factors to be taken into consideration”, which says:

“Aggravating and mitigating factors specifically relevant to sentencing for breach of an ASBO are included in the guideline. Care needs to be taken to ensure that there is no double counting where an element of the breach determines the level of seriousness where it might in other circumstances be an aggravating factor. When assessing the seriousness of an offence, the court must always refer to the full list of aggravating and mitigating factors in the Council guideline on Seriousness (see Annex B)”.

So people have to read another document as well. Then, as I understand it, according to the grid that I studied, the old alcoholic who broke his ABSO will get a fine, band B—which I assume he will not be able to pay, because if he had any money he would have spent it on drink. Alternatively, he will get a “community order (medium)”, which I assume he will not turn up for.

In the light of the amendment, my question to the Minister is whether this is a good way of using judicial brains and resources, as well as the resources of the criminal justice system. Does the end result serve communities and solve the problems of alcoholic old men on the streets, or are we becoming slightly too framework-bound and determined to put everything into a grid? Is there no room for a little more flexibility, fluidity and looseness in dealing with the many human problems that courts come up against every day?

The answer to the noble Baroness’s question is yes. We are becoming tick-box obsessed. That may be at the root of Part 4. In the years that I served as a recorder and circuit judge it never occurred to me that there was a dearth of good advice on sentencing. In addition to the list that the noble and learned Lord, Lord Lloyd, properly referred to, one could have added the fact that about 20 years ago, if I remember rightly, we had an excellent institution of sentencing reports, as full and complete as one could possibly wish for. There was an amplitude of good material at the disposal of the intelligent and conscientious sentencer.

Now all sentencers of every rank are in a situation of abject horror at the effect of this provision. There are no doubt many things about Part 4 that are quite laudable. There was probably a case for extending the Sentencing Guidelines Council’s remit in so many regards to some extent. But the sovereign nature of the guidelines now brought about by Clause 111 is utterly objectionable. Those words mean what they seem to mean: “must follow”. They are peremptory and mandatory. They cannot be anything else. The consequence is that sentencers will be placed in a straitjacket, will be enslaved, and will be mere ciphers and robots in a tick-box system. That goes to the very root of the administration of criminal justice in our country. I have the gravest doubts as to what the Government’s motivation was. I appreciate the genesis of this. It started with the report of the noble Lord, Lord Carter, in December 2007 and the problem of prison overcrowding. He pointed to two possible solutions: massive building, which has been accepted by the Government, and the setting up of the Gage committee.

That committee looked with great conscientiousness at the whole situation, but its recommendations are not exactly being brought into legislation by the Bill. Indeed, on the main matter, there was indecision in that committee. The committee’s decision was to reject the Minnesota and North Carolina strictness and to opt for a somewhat less harsh regime. That regime is nevertheless utterly mechanistic, unimaginative and non-human, as far as the sentencer is concerned, in its approach. It is therefore a cancer that grows to the very root of the administration of justice and must not be allowed to persist.

There is constitutional point that nobody has mentioned until now in these discussions. The wording of Clause 111 comes directly from New Zealand’s Sentencing Act 2002. This is the second time in two days that we have been discussing legislation that has been culled completely from a New Zealand statute. The anonymity of witnesses provisions of the Bill are another instance. However, in New Zealand, the point is taken that so much authority is given to a sentencing council or commission that it is effectively making new law. Because it is making new law, it must pass, by way of order, through the New Zealand legislature.

That point was raised at Second Reading in another place. The Secretary of State for Justice said that he had some sympathy with that view, but the Bill is totally silent on the matter. If it is sovereign and mandatory, as it is, I have no doubt that it is bound to have the effect of making new law that does not pass through Parliament. I have no real idea what the Home Secretary’s intention was in this matter. He said that the,

“suggestion that the proposal is driven by a desire to reduce the prison population is completely untrue”.—[Official Report, Commons, 26/1/09; col. 47.]

At a later stage of the Bill he outlined the intentions on the independence of judges:

“First, and above all, the Government are trying to ensure respect and proper protection for the independence and autonomy of sentencers when they pass their sentences. That is critical: we need to provide considerable discretion, but we must also ensure that that discretion is exercised in a structured way that the public and other sentencers can understand. We are not fettering the judiciary, but we are saying that there should be a carefully moderated body of guidance”.—[Official Report, Commons, 24/3/09; col. 241.]

I am glad to hear that they are not fettering the judiciary. If they were, what they would have done would have been utterly frightening over and beyond what would be achieved by Clause 111.

I fear if I had not interrupted, I might have lost my chance to say a few words. Clause 111 causes me something of a problem. What I have heard during this short debate adds to my sense of that problem. It appears to me that in Part 4 the Government have been conscious that, if sentencing guidelines are going to work, they must have the support of the judiciary. The reason why the present Sentencing Guidelines Council, which will continue to exist until this legislation is passed, was presided over by the Lord Chief Justice was to try to indicate to the judiciary as a whole the importance of following the guidelines.

The experience in the United States is that if you have a grid, the judiciary find their hands are bound in a way which they regard as unacceptable. Therefore, they resort to devices in order to avoid that effect in a case where they feel the grid produces injustice. No doubt those on the committee who recommended the current drafting were conscious of that and concerned about it and, therefore, included in their recommendation the important words at the end of subsection (1) of Clause 111,

“unless the court is satisfied that it would be contrary to the interests of justice to do so”.

I do not know how those words are going to be interpreted but I would point out that the present test, which requires the judiciary to “have regard to”, is working perfectly satisfactorily.

In addition to the other matters relied on by noble and learned Lords who have addressed this issue, I would suggest that there is a grave disadvantage to adopting this new formula. If I was a judge and I was in a situation where I wanted to disapply the guidelines, I must confess that I would not find any difficulty in doing so. I hope I never passed a sentence when I was a sentencing judge which I did not consider at the time was in the interests of justice to pass. If that be so, presumably, if I was faced by a guideline which was inconsistent with what I wanted to do, I would say that I was satisfied that it would be contrary to the interests of justice for me to pass any other sentence than the sentence I wanted.

It therefore seems to me, with greatest respect, that giving these words the natural meaning, far from reducing the discretion of the judge, in fact increases it. I do not know whether that is what is intended, but if so, perhaps we are getting unduly alarmed by the present subsection. I ask the Minister to indicate whether the interpretation I have speculated on is the one which the Government are urging on the judiciary. If it is, I do not think we want to be too concerned about the present language of Clause 111(1). My concerns are, however, that those distinguished lawyers who have anteceded me in addressing the Committee on this clause apparently were taking a different view from my interpretation. Therefore, I have reservations as to whether I am right. But to me, this does not look like a straitjacket; it looks like almost no jacket at all.

The difference between the three tests is clearly set out in Lord Justice Gage’s report. They saw a difference between the three tests and rejected the one which is proposed by the Government. So there is a difference between them.

I apologise to the noble and learned Lord for intervening before him. Where we speak in the batting order in Committee does not matter particularly, but his intervention is at least interesting in that it has no doubt provided some solace for the Government.

It is a convention in this House that we can put down only four names to any amendment. However, my late noble friend and I so much wanted to support this amendment in the name of the noble and learned Lord, Lord Lloyd, and the other noble Lords who have spoken, that we added our own Amendment 189A, which amends the second paragraph and changes “follow” to “have regard to”. I do not need to add much to what they said other than to say that we very much support it. The question is how we should take it from now on. The noble Lord, Lord Elystan-Morgan, questioned the Government’s motivation in using the words “must follow” rather than “must have regard to”. For once I am going to be kind to the Government and suggest it might be inadvertence on this occasion rather than malice that has brought them to put this forward.

I suggest to the noble and learned Lord that it might not be appropriate to divide the Committee on this matter tonight. We now have a long summer ahead of us—one of these recesses the Government give us that seem to go on for ever. That will give the Government an opportunity to re-examine the clause and come back with improvements. We hope that the Government will agree with the fundamental principles that have been put forward by those who support this amendment and will draft their own amendments along the lines that have been suggested by the noble and learned Lord. It will not take much tweaking to remedy this and get it right.

I have one other question. There are four amendments in this group—one in the name of the noble and learned Lord, one in my name and two government amendments. Before any decision is made, we obviously need a proper explanation from the Government as to what their amendments are about because I cannot quite understand them. It may be that, in the myriad of letters that have been pouring out of the Ministry of Justice over the past few months, there was one letter dealing with these amendments. If so, it is probably in the wrong tray on my desk and I cannot find it. But no doubt the Minister will give us an explanation which all those who have spoken will want to consider carefully before deciding what to do. Again, now is not necessarily the moment to press this, but the Government need to come forward with something better before Report. For once, rather than the usual two weeks, they have something like three months to consider this. That should be enough time even for the Ministry of Justice. We can then make up our minds come October as to what to do about it.

Sentencing guidelines can be extremely helpful, particularly for the young tyro sentencer who does not want to pluck a sentence out of the air but wants to know what the general going rate is. With that at the back of his mind, he can apply what he thinks is just in the particular case.

Twenty years ago at a judicial studies conference the question was asked: how can we have consistent sentencing all over the country? I recall I proposed that, instead of having the Court of Appeal decide sentencing appeals, three circuit judges from different circuits should go round the country deciding sentencing appeals and we would thereby achieve some sort of consistency. I recall that my proposal was voted down by 60 votes to two. The other day I spoke to the person who supported me on that occasion. He had completely forgotten about it but I have not—it is burnt into my soul. On the other hand, we are not used to winning on this side, so it does not worry me too much.

I was a member of the Gage committee until I resigned because I felt that it was too political and that it was not appropriate that I should continue. One of the concerns of the Gage committee was the effect of the grid system that had been examined in Minnesota and South Carolina. The members of that committee were concerned that it had increased sentences significantly, the use of a formula was not satisfactory and that it just increased prison places. Your Lordships may recall that, possibly at Second Reading of the Bill but certainly fairly recently, I pointed out that if we were to sentence in accordance with the average sentences passed throughout the European Community, to which we belong, instead of having 80,000 people in prison we would have 58,000 and there would be ample prison places. Therefore, I approach the Bill with suspicion. When I see that a member of the Sentencing Council is to be a statistician, I question why that is so. What does a statistician know about justice, sentencing and what exactly happens in the courts? Clause 113 is headed, “Resource implications of guidelines”. It states that where the council publishes draft guidelines or issues guidelines as definitive guidelines, it must publish a resource assessment of,

“the likely effect of the guidelines on—

(a) the demand for prison places,

(b) the resources required for probation provision, and

(c) the resources required for the provision of youth justice services”.

That is fine. Perhaps the Minister can put me right, but I do not think that the current Sentencing Guidelines Council has the job of trying to assess how many prison places are required as a result of what it is putting forward.

I recall another sentencing conference in Wales addressed by Lord Justice Tasker Watkins VC, who said, “Don’t you worry about prison places; you pass the sentences you think are right and it’s for the Government to find those places”. If the council must take resource implications into account when it publishes its guidelines, and judges did not follow those guidelines, it might knock its assessments about a bit, and its assessments of prison places might not be neat and tidy and accord with what the Home Office wants. We are not concerned with prison places as such. We are not concerned with units. I think that I mentioned on Monday my opposition to having prisoners appear in court on television screens, as that depersonalises them. I sometimes feel that the Wizard of Oz in the Home Office, who is full of knowledge about everything, sees prisoners not as people but as units to be slotted in, and that we have to ensure that we have enough places into which we can slot them.

To my mind this simply takes away from the judiciary its traditional role in a democratic society. I keep on emphasising that because sometimes you hear Ministers, such as former Home Secretaries, suggesting that judges are unelected and therefore one must not have any regard for what they say. Judges are part of our democracy and have a function. Part of their function is to ensure that people who come before them have their just deserts. If it means locking them up for the rest of their lives, so be it. Each individual is not a unit to be slotted in. I am very suspicious about the fact that the proposed guidelines council will have to produce an assessment of prison places, and that judges must follow the guidelines that the council lays down so that the places and the units slot together.

I thank the noble and learned Lord, Lord Lloyd of Berwick, for introducing the debate. I also thank all noble Lords who have spoken in it. Very important issues are at stake. Before I outline the government amendments, I make it clear that we are not suggesting, of course—as I know the Committee agrees—a United States-style grid with narrow sentencing ranges. That idea was firmly rejected at an early stage by the independent working group chaired by Lord Justice Gage. The membership of that committee comprised most distinguished lawyers and criminologists. It was not so distinguished once the noble Lord, Lord Thomas of Gresford, resigned from it, but it was still fairly distinguished, even without him.

I wish to quote from the Second Reading speech of the noble Baroness, Lady Linklater. She said:

“We are very glad that the sentencing grid, as proposed by the noble Lord, Lord Carter, has been rejected and that the current proposal in the Bill broadly reflects, instead, the conclusions of the working group under Lord Justice Gage, who had looked closely at the Carter proposals. The wording of the Bill is that the courts must have regard to the guidelines, but there is also the important caveat,

‘unless the court is satisfied that it would be contrary to the interests of justice to do so’.

I am well aware that this is causing real concern for sentencers and that it will require careful scrutiny. However”—

I take comfort from the following words—

“it is a serious attempt to balance the need for consistency with the need for judicial discretion. It will be important to ensure that it never becomes an exercise in predicting prison numbers, or that its emphasis is perceived to be on the punitive, as opposed to the restorative and rehabilitative, element of sentencing”.—[Official Report, 18/5/09; col. 1290.]

I do not know whether I was wrong to do so but I took comfort from what the noble Baroness said at Second Reading on behalf of her party.

I stand by what I said. Indeed, I stand shoulder to shoulder with the noble and learned Lord, Lord Woolf, on this. The caveat was the very important underlying part of the framework. We have a serious problem with regard to an upward drift in sentencing to custody. Therefore, I stand by what I said.

I am grateful to the noble Baroness. Her noble friend Lord Dholakia expressed even greater support for the Government’s proposal. He said:

“Fourthly, there will be a different statutory test governing cases in which courts depart from the guidelines. At present, courts have to consider sentencing guidelines and give reasons if they depart from them. Clause 111 requires courts to follow the guidelines,

‘unless the court is satisfied that it would be contrary to the interests of justice to do so’”.

The noble Lord has huge expertise in this field. He continued:

“Some critics of the Bill have suggested that this is too restrictive a test, but in my view it is entirely proper that a court departing from the guidelines should have to show that this is in the interests of justice. What other good reason could there be for passing a sentence different from the guidelines than that this is necessary in the interests of justice? I therefore welcome the provisions for the new Sentencing Council”.—[Official Report, 18/5/09; col. 1285.]

That ends the quotation.

I am grateful to the noble Lord for giving way. What is his position? Is he saying that the proposed new test is stricter or less strict than the present test? Which is it? The noble and learned Lord, Lord Woolf, seems to think that it may be less strict; others—among whom I include myself—think that it will clearly be more strict. What is the Government’s view?

I think our view is that it is slightly stricter, but I place the emphasis on the word “slightly”. It gives, with the caveat, something that I would argue means that there is no need for noble Lords to think that somehow this is—to use a cliché—the end of civilisation, or the end of justice as we know it. It is not. Judges’ discretion is, because of the caveat, every bit as great as it has always been.

The noble and learned Lord, Lord Woolf, asked a couple of relevant questions. How has “the interests of justice” been interpreted? I will do my best with this. It has been used in sentencing-related legislation—as the noble and learned Lord will know much better than me—to enable courts to deal with circumstances which are exceptional and particular to a case. I repeat: exceptional and particular to a case. The words can be interpreted by the courts and then incorporated in guidelines. We believe that the Court of Appeal is likely to provide guidance in the interpretation of the “interests of justice” test.

We have adopted the recommendation of the majority of the working group that there should be a more robust duty to follow guidelines, subject to an “interests of justice” test. We believe that this gives wide discretion to sentencers to depart from guidelines where, in the interests of justice, it would not be appropriate to follow them. This means that a sentencer can depart from the guidelines where, for example, there are compelling mitigating factors—mercy killings would be one example of this—or indeed where the aggravating factors are so serious that the sentencer feels the need, in the interests of justice, to impose a more severe sentence than is set out in the guidelines.

I indicated at Second Reading that the Government would be receptive to ways to ensure that the right balance was struck between the duty on sentencers to follow guidelines and the need to exercise discretion in individual cases. Thus the two government amendments in this group—Amendments 189B and 189C—are designed to achieve that balance. Amendment 189C does two things. First, Clause 111 has been redrafted to make it clearer that the duty to follow guidelines does not mean that a sentencer has to sentence within a narrow category; rather, the sentencer is required to sentence only within the entire guidelines range for the offence, unless it is in the interests of justice to depart from the entire guidance. Secondly, the amendment seeks to clarify the duty on sentencers—where there is a guideline that identifies categories of offending behaviour—to identify the category that most resembles the case before them. This amendment means that the duty of the court to decide which category most resembles the facts of a particular case does not apply if there is not a sufficient resemblance. There is already a wide range of discretion for the sentencer, and we hope that these government amendments make that discretion even clearer.

Let me illustrate this with a practical example. If we take an offence such as robbery, we see that there is an existing guideline issued by the Sentencing Guidelines Council. That guideline is formatted in a way which subdivides the offence into three levels of seriousness. That is the preferred format but, as our earlier group of amendments made clear, it is not mandatory. Assuming that robbery guidelines are subdivided, the duty on the sentencer to follow guidelines is to sentence within the whole offence range—that is, the range for the entire guideline. For the current guideline the offence range goes from a custodial sentence of no years to 12 years’ custody. This amendment makes it very clear that the duty does not force the court to stay within the subdivided range known as the “category range”. However, the Committee should note that there is sufficient flexibility to have as many or as few categories within a subdivided offence-specific guideline as appear to the council to be appropriate, given the nature of the offence. Again, we should not forget that this duty to follow the guideline—to sentence within that range of 0 to 12 years—does not apply if it is not in the interests of justice to do so.

Furthermore, Clause 111 makes it clear that where there is a subdivided guideline which has starting points and ranges for each category, there is a duty on a sentencer to identify the category that most resembles the case before them. Amendment 189C provides further clarification that this part of the duty does not apply when the sentencer considers that the case they have before them does not sufficiently resemble any of the categories. In other words, a sentencer is not required to try to shoehorn a case into a guideline category. I argue that the government amendments make very clear the wide discretion that exists within this duty to follow guidelines. There is no requirement on a sentencer to sentence within a narrowly defined range. It is not, in our view, correct to say that this duty is unduly restrictive, that it fetters judicial discretion or that it stops the sentencer from doing justice in an individual case. That power of a sentencer, be it a magistrate or a High Court judge, remains as it always has.

It is important that we have properly constituted guidelines and that these guidelines be followed. It has been said from all sides in this debate that guidelines assist sentencers; they help to provide consistency, which earlier in today’s proceedings was considered to be an absolute sine qua non, if I may use the expression. Consistency is what sentencing should be about. Guidelines can also increase public confidence in sentencing. That is why the Government believe that these provisions allow sentencers a clear and wide degree of discretion.

May I put a very simple question to the Minister about the rationale that underlies Part 4? Is he saying that, up to now, many sentences have been misconceived; and were inconsistent because the wrong approach was adopted by the court? If so, can the Minister give any indication of whether Her Majesty’s Government made any calculation of what percentage of sentences that was? Was it minuscule, substantial or massive? Secondly, can I put a point that I raised two nights ago very late at night? I did not then expect the Minister to reply. That concerned what the Court of Appeal decided in 2007 in relation to the whole question of guidelines in the case of R v Martin. The court said that guidelines are guidelines—no more and no less. It seems to me that, in light of what the Minister is now saying, guidelines will be something much more than mere guidelines.

It will be expected that the guidelines are followed unless it is not in the interests of justice as far as the individual judge who is sentencing is concerned. The noble Lord asked for examples; I will give one. It comes from the Gage report and I do not make great claims for it, but the noble Lord asked me and I give it to him. I do not claim that it is systematic or that it proves anything in itself. The Gage working group surveyed sentencing decisions in 10 Crown Courts. In that survey, in 46 per cent of cases, sentencers sentencing for the offence of burglary passed a sentence that was outside the guideline range. That may well have been justified in the circumstances of those 46 per cent; on the other hand, it may have been a rather high percentage that was outside the range.

It must have been—I was going to say anecdotes—evidence, whatever you want to call it, like that that made the majority of the working group, a distinguished working group, under a very distinguished judge, argue, on a majority:

“The application of guidelines should be sufficiently robust to provide the necessary consistency”—

the noble and learned Lord knows what is coming next—

“transparency and predictability”.

This argues for a presumption that the guidelines have to be applied, following the New Zealand model in the New Zealand Sentencing Act 2002. I will just read what that Act says:

“A court must impose a sentence that is consistent with any sentencing guidelines that are relevant to the offender’s case, unless the court is satisfied that it would be contrary to the interests of justice to do so.”

That is what we are attempting to do in the Bill, following the majority view of the Gage working group.

I am grateful to the Minister for giving way. I am having some difficulty in understanding this. I am not a criminal lawyer, but the Minister on the one hand says that the word “follow” is a bit more strict than the words “have regard to”; but he says that the discretion of the judge is equally broad. I just do not understand it.

I hope that what I said was not “a bit” more, but was “slightly”. That is our view and I think it was probably the view—although how dare I speak for them?—of the members of the Gage working group. They had before them various choices. They had the United States experience, which they rejected out of hand—I think everyone here agrees that that was the right thing to do. They had the Criminal Justice Act 2003, which has been praised by noble Lords this evening in a way I do not think I have ever heard that Act praised before in this House. They also had the New Zealand Sentencing Act 2002. They had these three before them; I have no doubt that they may have had others in mind too. On a majority, they favoured the phrasing that was used in the New Zealand Sentencing Act 2002. The Government, too, in their turn, following the Gage recommendation—and it was a recommendation—think that that is an appropriate way of phrasing this issue.

The “interests of justice” phrase is the most significant phrase in all this, as the noble and learned Lord, Lord Woolf, was arguing. It means that a judge can pass the sentence that he or she wants to pass. That is why I find it hard to see what the objection is to the use of the word “must”, as far as the guidelines are concerned, as opposed to the words in the 2003 Act.

I thank the Minister for giving way and I appreciate his great care in responding to these questions. Is he concerned, as I am, given the response of the noble and learned Lord, Lord Woolf, that others may misunderstand the Government’s intentions and, far from making the guidelines slightly more strict, it might have the opposite effect and the judiciary might treat the guidance with less respect and more freely? I am concerned. I would like some clarity, please.

I do not know whether the noble Earl would be pleased if that is the way the judiciary responded.

May I make it clear that, if there are guidelines, I would expect the judiciary to follow the guidelines. What the guidelines do—and to this extent, I do not believe that they differ from the previous guidelines—is to set down what you, as a judge, in the normal way, should regard as the appropriate sentence. However, if there are circumstances that mean that you do not feel it would be just to apply the guidelines and you are satisfied as to that, you can depart from them. The previous test was framed differently. The previous test said that you must have regard to the guidelines, but it also went beyond that, because, as the Minister indicated, if you were going to depart from the guidelines, the judge had to give reasons for departing from the guidelines.

The process of reasons, it seems to me, is doing no more than, in effect, saying, “These are the reasons why I do not think it is right to apply the guidelines”. To put it in other words, “These are the reasons why I do not think it is just to apply the guidelines”. Here, it is in different language and it may have the undesirable effect of introducing uncertainty, which would be unfortunate, but I do not think there is really much difference between the tests.

I do not think I can do better than the noble and learned Lord, Lord Woolf, in the way he described the position. The reason we are seeking to change the law in this regard is because the Gage working party thought there was a need to be slightly more robust and it thought that this phraseology was more robust than the existing one. They were concerned with consistency. As for predictability, that is important because we need to plan for prison places and probation resources. That does not mean that sentencing is determined by resources, but it is key to the Gage report recommendations. We need to improve predictability, because we do not want a sentencing grid.

The Gage report, at paragraph 4.14, says that there is, at present, no information on departures, but it goes on to say:

“In our view this represents another defect in the present system”.

I am asked why transparency is relevant. It is relevant so that the public and victims of crime have some understanding of the range of sentences that are likely to be imposed for a given offence. I put it as broadly as that. It is also important, of course, to defendants, so that they know what they might expect if they commit, or have committed, a crime, and, of course, for lawyers who represent them.

I am conscious that I have been on my feet for some time. I hope I have put the Government’s case on this. I think the complaint that this is somehow going to restrict judges’ independence of action on sentencing to an extent whereby they become mere ciphers and just do what the state wants is hugely misplaced. It is for those reasons that I am going to move the government amendments in due course and I ask the noble and learned Lord, Lord Lloyd, to withdraw his amendment.

I think that the Minister has accepted that this test is only slightly more strict than the existing test, in which case, is it really worth all this upheaval? It has not been pointed out to me what benefit there is in changing the test. The only one appears to be consistency, but I am not clear how it will help consistency in any way. As for the noble and learned Lord, Lord Woolf, I am bound to say that I disagree with him when he says that these two tests will be treated as being the same. I do not think that they will be. As a matter of common sense, judges all over the country will see this as being, and as having been intended to be, a stricter test than that which they already apply. Having said that, I beg leave to withdraw the amendment.

Amendment 189 withdrawn.

Amendment 189A not moved.

Amendments 189B and 189C

Moved by

189B: Clause 111, page 69, line 15, leave out “contain provision by virtue of section 107” and insert “are structured in the way described in section 107(2) to (5)”

189C: Clause 111, page 69, line 17, leave out subsections (3) and (4) and insert—

“(3) The duty imposed on a court by subsection (1)(a) to follow any sentencing guidelines which are relevant to the offender’s case includes—

(a) in all cases, a duty to impose on P, in accordance with the offence-specific guidelines, a sentence which is within the offence range, and(b) where the offence-specific guidelines describe categories of case in accordance with section 107(2), a duty to decide which of the categories most resembles P’s case in order to identify the sentencing starting point in the offence range;but nothing in this section imposes on the court a separate duty, in a case within paragraph (b), to impose a sentence which is within the category range.(4) Subsection (3)(b) does not apply if the court is of the opinion that, for the purpose of identifying the sentence within the offence range which is the appropriate starting point, none of the categories sufficiently resembles P’s case.”

Amendments 189B and 189C agreed.

Clause 111, as amended, agreed.

Clauses 112 and 113 agreed.

House resumed. Committee to begin again not before 8.40 pm.