HC Deb 29 June 1993 vol 227 cc905-20
Mr. Michael

I beg to move amendment No. 1, in page 73, line 11, at end insert— '(1 A) In fixing the amount of any fine, a magistrates' court shall consider the weekly amount which it appears to the court the offender can reasonably afford to pay as a fine, and the amount of any fine imposed by a magistrates' court shall be the product of this amount and the number of weeks' payment which in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and other offences associated with it.'.

Mr. Deputy Speaker (Mr. Michael Morris)

With this it will be convenient to discuss also the following amendments: No. 2, in page 73, line 12, after 'court', insert 'other than a magistrates' court'.

No. 3, in page 73, line 15, after 'court', insert 'other than a magistrates' court'.

No. 9, in page 73, leave out line 46.

No. 10, in page 74, line I, leave out 'and that Schedule'.

No. 4, in clause 65, page 74, leave out lines 30 to 33 and insert— '"29.—(1) Nothing in this Part shall prevent a court from passing a more severe sentence on an offender by reason of his loss of mitigation due to previous convictions or to any failure of his to respond to previous sentences, or by reason of any aggravating factors of the offence disclosed by previous offences, provided that the sentence (other than a sentence passed under section 1(2)(b) or section 2(2)(b) above) is not disproportionate to the seriousness of the offence or, where applicable, to the seriousness of the combination of the offence and other offences associated with it.".'.

No. 5, in schedule 3, page 87, leave out from beginning of line 23 to end of line 42 on page 89.

Mr. Michael

The way in which we dealt with the previous group of Government amendments demonstrates the co-operative way in which we have approached the Bill. However, the number of Government amendments shows that the legislation has often changed rapidly and dramatically as it has progressed. That led me to table amendment No. 1 and those grouped with it.

They relate to a part of the Bill that did not exist on Second Reading, and which was therefore not considered in Committee or on Report in another place. The changes heralded by this group of amendments concern fines and the ways in which previous offences are dealt with.

We take some pride in having provoked the Government into making one of numerous U-turns seen in recent months. This one is welcome, because there is a need to address the problem of unit fines and section 29 of the Criminal Justice Act 1991.

Dame Elaine Kellett-Bowman

Many of my right hon. and hon. Friends frequently raised that issue on the Floor of the House and in correspondence, so the hon. Gentleman cannot claim all the credit. It is a perfectly common-sense move, and as ours are a common-sense Government, they normally adopt such improvements.

Mr. Michael

I am delighted to share a piece of common sense with the hon. Lady. Previous Ministers were reluctant to exhibit that common sense, but I clear the present Minister of blame for that, as I have done at every stage. We can claim more credit, because there would have been no action had it not been for my hon. Friend the Member for Warwickshire, North (Mr. O'Brien), who introduced a ten-minute Bill, which could have passed through the House—in the way that the Bail (Amendment) Bill did, with our support—had the Government been more forthcoming. We can claim some credit for being proactive in seeking amendments to parts of the legislation that were causing difficulty in the courts.

Grouped with amendment No. I are amendments Nos. 9, 10 and 5, in the name of my hon. Friend the Member for Dumbarton (Mr. McFall), on which he will comment.

Unit fines have been dogged with problems. When they were implemented last October, we warned that, if the Government did not take care, problems would arise. The over-excitable way in which the former Home Secretary performed his U-turn gave rise to the danger that not only the problems created by the Government's implementation of the unit fines system but principles that have not been contested by anyone might be removed. In other words, the baby might be thrown out with the bath water.

Had some means of dealing with the unit fines system and section 29 of the 1991 Act formed part of the original Bill, we would have had an opportunity to move amendments and to improve the legislation as it progressed through the House. In Committee, we moved with commendable speed to test the Government's principles.

The amendments seek to guide magistrates to impose fines that relate to the means of the offender and to be more precise than the formulation currently in the Bill. Magistrates will be required to observe a two-stage process—to assess the weekly amount that the offender can reasonably afford to pay, and to impose a fine reflecting the number of weeks of payment that the court considers to be commensurate with the seriousness of the offence.

For the same offence, a well-off offender would receive a higher fine than a poor offender, in line with their different weekly incomes and an amount that each could reasonably afford to pay as a fine.

Dame Elaine Kellett-Bowman

indicated assent.

Mr. Michael

I believe that principle is agreed in all parts of the House—I am glad that the hon. Lady agrees—and by those who were dissatisfied with the system that was implemented by the Government and those who supported them.

The basic argument for such an approach is that, if operated properly, it would ensure that the fines imposed a more equal degree of punishment on offenders having different income levels. A fine of £150 may be derisory to someone who is wealthy, but it could be crippling for someone on income support or who is caught in the poverty trap just above income support level. The degree of punishment felt by the two offenders is very different.

That was the widely supported principle on which the House agreed in the past, but the statutory unit fine system operated in a way that led courts to impose unreasonably high fines on offenders having modest, middle incomes. The amendments will produce the benefits of means-related fines without the unintended ill effects that resulted from the statutory unit fine system. The House can see how generous I am, in assuming that incompetence rather than intention led to that system being implemented in the way that it was.

Dame Elaine Kellett-Bowman

Much of the problem was due to offenders flatly refusing to fill in the forms. That being so, the courts took an adverse view of their income. It was due to pig-headedness on the part of some defendants.

Mr. Michael

I entirely agree. In the famous crisp packet case in Gwent, aggravating factors were considered by the court. The newspapers continually refer to the fine in that case being reduced on appeal, but it was not. It was reduced automatically when the defendant filled in the forms. The defendant had the grace to admit that that was the case, even though some newspapers did not.

I am rather worried by this degree of agreement, but I hope that the Minister will join this party and will agree that we should pursue that principle. Things went wrong for a variety of reasons, but we must make sure that the changes that the Minister sought in Committee do not bring about another cause of difficulties and damage the Minister's reputation—in the way that implementing the unit fine system irretrievably damaged the former Minister of State, Home Office, who is now Secretary of State for Education.

In this atmosphere of agreement, I return to what we are trying to achieve in the amendment. It is particularly important that we should not go back to the system that existed before 1991. Unrealistically high fines should not be imposed on offenders with modest or reasonable means, and certainly should not be imposed on those of low means.

Before the 1991 Act, a quarter of the people who were sentenced to imprisonment each year in England and Wales were imprisoned for non-payment of fines. In 1991, a total of 18,973 people were imprisoned for fine default. The fines of the imprisoned defaulters were originally imposed for a wide range of offences. The largest categories were motoring offences, with 5,180 offenders, and theft and fraud, with 3,631. Some 26 per cent. of all sentenced prisoners entering prison in 1991 and 46 per cent. of those given sentences of six months or less where imprisoned for fine default.

9 pm

Those figures are not irrelevant. They are highly relevant, and not only to the behaviour of the courts in the new legislation. Has the Minister made any allowance in the acceleration and increase of the prison building programme for the increase of people imprisoned for default which may arise as a result of the change in the Bill? Most sentences fit fine defaulters short—defaulters represented just 1.2 per cent. of the average daily population of sentenced prisoners and 11.2 per cent. of those serving six months or less.

However, even a small proportion of fine defaulters can cause serious problems for a hard-pressed prison system, especially as the strain is felt most in the local prisons where overcrowding is greatest. The Minister must pay particular attention to the fact that the work caused by almost 19,000 annual receptions—the processing of each offender and the reception, discharge, paperwork and so on—is substantial, regardless of the prisoner's length of stay.

In Committee, the Minister said on 17 June 1993: In the past, the courts have had a duty to reflect in the fine the offender's means, but only since the 1991 Act have they had a duty to inquire into the financial circumstances of the offender. That duty remains, so the courts should be armed with much better financial information about the offender's means and he better able to set an appropriate sentence."—[Official Report, Standing Committee B. 17 June 1993; c. 259.] However, the change is more apparent than real. In practice, before the 1991 Act, courts always asked offenders how much their income was before fining them. The consequence was an increase in the number of people being imprisoned for default despite that practice being observed.

The Opposition amendments, therefore, are directed to helping the Minister. They will ensure that, after the unit fine system is abolished, the principle of means-related fines will continue to govern courts' decisions. That will ensure that financial penalties bear evenly on the wealthy and less well-off, avoid the imposition of unrealistic fines on the poor, and prevent a sharp rise in the number of offenders unnecessarily imprisoned for fine default.

I turn to the amendments that deal with the way in which the Government have approached section 29 of the Criminal Justice Act 1991. Clause 65 repeals section 29 of that Act and replaces it with a formulation allowing courts to take into account any previous convictions of the offender or any failure of his to respond to previous sentences when considering the seriousness of an offence for sentencing purposes. Our amendment seeks to make sure that this is done in a sensible way and says: Nothing in this Part shall prevent a court from passing a more severe sentence on an offender by reason of his loss of mitigation due to previous convictions or to any failure of his to respond to previous sentences, or by reason of any aggravating factors of the offence disclosed by previous offences, provided that the sentence (other than a sentence passed under section 1(2)(b) or section 2(2)(b) above) is not disproportionate to the seriousness of the offence or, where applicable, to the seriousness of the combination of the offence and other offences associated with it. There are two elements there. One is the question of mitigation, which the Minister will note was discussed across the parties. The Minister will note that Conservative Back-Benchers asked how loss of mitigation would be brought into the system. There was agreement across the Committee on whether the approach to the loss of mitigation was the right one.

Lip service was paid to the second element, which is that the offence should not be treated as more serious than it really was. Obviously, if there is a record, it must be taken into account and the sentence needs to be set accordingly. Loss of mitigation will occur accordingly. But the offence should not be treated as if the theoretical theft of a Mars bar became a serious offence akin to assault, burglary or other serious offences. No matter how often the offence is repeated, it remains only as serious as it is.

It is that which we seek to maintain in the formulation that we put forward. We first make it clear that the courts may pass more severe sentences on offenders with previous convictions, but we also make it clear that that is subject to the limitation that the courts must not increase sentences to levels out of all proportion to the seriousness of the current offence. Therefore, in effect, courts will be able to increase sentences because of previous convictions or reduce them because of the offender's previous clean record, but it must be within the band of possible sentences broadly in proportion to the seriousness of the offence before the court.

That observes principles that already exist. The guidance for the court is already there through Court of Appeal decisions and sentencing practices that have been established over a period of years. The danger is that, if we do not write into the law a limiting principle of proportionality, we could return, not to the position before the 1991 Act, which is what the Minister intends, but to a more punitive sentencing framework, under which some offenders could be given sentences out of all proportion to what they deserve as a result of their offence.

It is necessary to look at examples that might develop and at the position before the 1991 Act. The Court of Appeal has repeatedly emphasised that an offender should not be sentenced for the offences that he has committed in the past and for which he has already been punished. That principle is already within the law, and was established by R. v. Queen in 1980. The offender faced a punishment commensurate with the seriousness of the new offence. To top up that punishment because of past wrongdoing for which the offender has already paid the penalty, would be to punish him twice for the same offence.

That did not mean that the courts were required to treat a repeat offender in the same way as an offender with no or few previous convictions. The latter could be given a more lenient sentence because of the mitigation of having a clean record.

I remind the Minister again of the fact that that principle was referred to in Committee by two of his hon. Friends. Therefore, it is a matter on which there is agreement among those who have experience of dealing with these issues in the courts. It could mean that a repeat burglar would eventually be sentenced more severely than a rapist. Surely that would not be right. It would offend against common sense. An offence does not become more serious than another simply because it has been repeated.

I hope that the Minister will see that there is common sense and balance in what we are saying, and that he will recognise that, as a result of recent decisions by the House of Lords, what is said as the Bill passes through this place is important. This part of the Bill only emerged in Committee, and has had proper consideration only in Committee and here on Report. Therefore, it is particularly important to ensure that the right principles are enshrined in the statute.

Will the Minister look with care at the two elements within the amendments that we have tabled? It is important to ensure that offences do not lead to custodial sentences where they would not otherwise have done so. I point the Minister to a reference in a 1988 Home Office research study of Crown court sentencing. It found that, in cases of theft valued at under £200, 39 per cent. of offenders received immediate prison sentences. In such cases, imprisonment is, in practice, often a response to persistent minor offending in the past, and cannot be justified by the gravity of the offence for which the court is purporting to sentence.

The 1990 White Paper "Crime, Justice and Protecting the Public" said: Injustice is more likely if courts do not focus on the seriousness of the offence before them when they sentence. I am again playing the Government's own music back to them, and asking that the point be borne in mind.

I am sure that the Minister accepts that, where a punishment must be severe, because of the nature of the offence and because of its repetition, the courts must be able to act swiftly. It is equally important, however, to ensure that the system does not rack up offences, so that a severe punishment is not passed where the offences are not serious enough to justify it.

The departure from the principle of proportionality would mean imprisoning small-time offenders whose offences did not deserve it, passing disproportionately long prison sentences on those whose offences merited shorter sentences and using the most intensive community services for those who committed the most minor offences, for which lower penalties would suffice.

The result would be a general increase in the severity of sentencing to levels more punitive than before the 1991 Act. That would do nothing to reduce crime but a great deal to create injustice in sentencing. The amendments aim to persuade the Government that, in rightly abolishing the unit fine system and the constraints on courts that prevented them from taking into account previous offences, we must ensure that we avoid nonsensical judgments in the future.

I am sure that that will be the Minister's aspiration. I hope very much that he will take our constructive amendments on board in seeking to achieve those ends.

Mr. Maclennan

Three amendments appear in my name, of which amendment No. 5 relates to schedule No. 3. On reflection, I am inclined to the view that it would have been better to strike not so much at the schedule, which depends on clause 64, as at clause 64 itself, since that really is the heart of the matter. Recognising the constraints on order, I believe that I would be wise to focus my remarks principally on amendment No. 1 and leave it to another place to address the demerits of clause 64 frontally.

The last time I commented on the then Home Secretary's decision to abolish unit fines, he gave me the advice that I should retreat to a darkened room, take a pill and reflect on whether there was anything in the Government's proposals with which I was in agreement.

A period of tranquillity has elapsed—perhaps it has even extended into the debate, in which about 10 hon. Members are participating. Having followed the advice of the right hon. and learned Member for Rushcliffe (Mr. Clarke), although I did not require any artificial tranquillisers, I have come to the view that there is little to be said for the Government's proposals, which the amendments seek to modify.

Throughout this sorry discussion, we have witnessed the rather dangerous element of instant government which has been responsible for some of the worst aspects of criminal law reform in recent years.

Amendment No. I, to which the hon. Member for Cardiff, South and Penarth (Mr. Michael) spoke tonight, is an attempt—albeit a last-minute attempt—to attract some sense back into the business of fining. It does not go nearly far enough, but it will probably improve the Bill. I hope that the whole issue of fining—unit fining in particular—will be considered by their Lordships with the dispassionate objectivity which did not characterise the Government's introduction of new clause 64. That introduction was in sharp contrast with the manner in which the original proposal for unit fines was introduced by the Government in the Criminal Justice (International Co-operation) Act 1990.

9.15 pm

There had been a long-standing debate on the issue. The principle of unit fines had been tried and tested in many jurisdictions. It had been introduced in Finland as long ago as 1921, in Sweden in 1931, and in Denmark in 1939. In five other European countries, including France and West Germany, it was introduced in the 1970s, and Spain and Switzerland are now planning to introduce unit or day fine systems.

Thus, it cannot be said that, in proposing this means of tackling a long-standing series of related problems, we were without the benefit of international experience. I have gone through the history of the introduction of unit fines and have found that at no point did I criticise the principle. Indeed, I strongly welcomed the system as it was part of my party's policy. We saw it as a means of tackling three principal problems arising out of fining as it had developed in this country, particularly in the magistrates courts.

The first problem arose from the inconsistency of fining practice as between courts. I fear that the Government's action will do little to eliminate that difficulty. We shall hear complaints—complaints at least as strong as those that have been made since the unit fine system was so ineptly introduced—about the extraordinary discrepancies between fines imposed up and down the land for the same offence. The Government will have to be held directly responsible for this, for they had a means of their own devising to prevent it.

The second major defect that the Government sought deliberately to remove was the inequity of the fining system, which resulted in unequal pain being suffered by people fined fo similar offences without proper regard for their ability to pay. That is a real fear. The Home Office's own 'research shows that, in 1990, 90 per cent. of fine defaulters were unemployed.

The third probem with which unit fines were designed to deal—and I believe that, had they been given a proper chance, they would have dealt with it—was that of fine defaulters. The hon. Member for Cardiff, South and Penarth gave the figures. In 1991, about 19,000 people went to prison for defaulting. It cannot be a purpose of Home Office policy—I have no reason to believe that the Home Office has departed from its policy because the then Home Secretary, the right hon. and learned Member for Rushcliffe, decided to stand on his head—that a person deemed by a court to be suitable for fining should end up in gaol at public expense. That is an extremely expensive remedy, and one with which a Government prudent with public finance ought not to be satisfied. We shall watch with great interest what happens to the figures as a result of this ill-conceived change.

The Government do not know what has happened to sentencing and how the fines have worked in practice since the introduction of the unit fines system. As recently as 21 May, I asked the Home Secretary whether he would place in the Library the information collected by his Department on the operation of the system. The answer, from a Minister of State, was: Statistical information about fines imposed since 1 October 1992 is still being collected. It will be published in due course in the usual way."—[Official Report, 21 May 1993; Vol. 225, c. 343.] In other words, without the relevant information the Government moved to abolish what they had introduced scarcely two years earlier. It is almost inconceivably irresponsible, but it is entirely typical of the Government.

Dame Elaine Kellett-Bowman

The hon. Gentleman says that it was irresponsible, but the then Lord Chief Justice pressed for it.

Mr. Maclennan

If the hon. Lady cares to read the Lord Chief Justice's remarks in full, as I have, she will realise that he was dealing with a range of issues that were causing dissatisfaction on the bench in relation to the curbing of magistrates' discretion. He was certainly not advocating anything like that which the Government have incorporated in the clause that we are seeking to amend.

The Minister of State, the hon. Member for Penrith and The Border (Mr. Maclean) gave the game away in Committee. In seeking to explain what was then new clause 39, and talking about the abolition of unit fines, he said: We are concerned about the anomalous results that have been produced in several cases."—[Official Report, Standing Committee B, 17 June 1993; c. 240.] Is it appropriate to alter the entire system of fining, which had been the result of careful consideration by the Home Office over a period of months, if not years, on the basis of several bad cases?

I suggest to the Minister that such a move was ill considered and unjustified. The outcry to which he referred stemmed from one or two well-publicised cases which were plainly nonsensical and at least one of which was quickly put right when the facts about the defendant's income were brought to light, as the hon. Member for Cardiff, South and Penarth said. That is not sufficient cause for abandoning a carefully thought out system.

The Home Office is not usually so frivolous in its approach. Had it given the issue serious consideration, we might have been prepared to accept that the carefully wrought structure had been misconceived and that something else should properly be put in its place. In May, the then Home Secretary said that he accepted the unit fines system in principle, but only a week later he threw it out in its totality.

I suggested at the time—this clearly got under his skin—that he had on his mind thoughts other than the reform of the criminal justice system, that his head was high and that he had aspirations that some of us have noticed he rather quickly achieved, although I should hesitate to indulge in the post hoc ergo propter hoc fallacy and suggest that he owes his current eminence as Chancellor of the Exchequer to a packet of potato crisps flung out of a car window. For the sake of 24 hours of cheap popularity, the then Home Secretary was prepared to abandon a system of fining that was much more apt to produce just fines and to ensure that the penalties were related to means than had been the case in the past.

This hour and this place, with its rather exiguous audience, is perhaps not the right time to deploy all the arguments that might be adduced about possible alternative ways in which the system might have been modified, and I doubt whether it would be in order to argue that matter because we are dealing with a particular modification of the scheme. So far as it goes, however, the amendment represents an improvement on what the Government have introduced, though it will not really do as a substitute for the Government's first thoughts on the subject.

The pilot scheme which the Government introduced in four locations had much merit. It showed a distinct decline in the number of fine defaulters in all the areas affected and showed that it was possible for the courts to operate a system with some discretion against the background of the grids that had been established.

The difficulties that were thrown up in operating the new statutory scheme, which in some significant respects departed from the pilot scheme, were not insurmountable. They were surmountable in a number of ways which, I have no doubt, will be considered in the future by penal reformers and, I hope, by another place.

The criminal law does not benefit from instant judgments of this kind. It is a piecemeal approach which has disfigured our statute book and led to a number of monstrous injustices being enshrined in the law, almost in response to the headline of the day.

I do not wholly agree with the hon. Member for Cardiff, South and Penarth that unit fines should have been abolished, if that was what he was saying—[interruption.] I understood that Labour Members were also in favour of the principle of unit fines.

Mr. Boateng

I thought that my hon. Friend the Member for Cardiff, South and Penarth (Mr. Michael) argued well for the principle of proportionality. I did not hear him in any other tone or to any other end.

Mr. Maclennan

He was ambiguous on the point. He seemed also to accept that unit fines were unpopular in practice. He was not quite prepared to say that he accepted the principle and felt that they could be modified. The hon. Member for Brent, South (Mr. Boateng) is right to say that he spoke of proportionality later in his remarks, but earlier he appeared to accept that it was appropriate to abandon unit fines entirely.

Mr. Mike O'Brien

In Committee and on the Floor of the House, my hon. Friend the Member for Cardiff, South and Penarth (Mr. Michael) has always argued that the unit fine system needed to be reformed, not abolished.

Mr. Maclennan

That is a clear statement, and I am glad to have it. I had hoped that those who are anxious to ensure that fines are proportionate and who are concerned about the problem of fine defaulters landing up in prison might agree that the Govrnment have not properly tested unit fines before abandoning them. It would be a tragic outcome of this debate if the Government were able to perpetuate the myth that they have seriously tested the system of unit fines which has worked so well in many countries and avoided the monstrous nonsense of imprisoning the unemployed in particular because they default.

If it can be accepted that, for short-term political reasons, the then Home Secretary decided that it was appropriate to stand on his head and his successor felt duty bound to put something in place which required some attention to be paid to means, and if amendment No. 1 is accepted, it might do as an interim measure while the matter is considered at greater length and with greater concern for the consequences than could have been the case when the then Home Secretary decided to throw out the baby with the bath water.

9.30 pm
Mr. Mike O'Brien

I intend to address the question of unit fines and sentencing, but I should like to clarify a confusion that might have arisen from some of the comments by my hon. Friend the Member for Cardiff, South and Penarth (Mr. Michael), who suggested that my hon. Friend the Member for Dumbarton (Mr. McFall) would reply on behalf of the Liberal Democrats. In fact, he will reply in relation to later amendments dealing with Scotland.

On unit fines, the phrase that was used a moment ago about throwing out the baby with the bath water is precisely the phrase that my hon. Friend the Member for Cardiff, South and Penarth used. Labour Members oppose the current system and the way in which it has been working. There is a need for change and for reform rather than, as my hon. Friend said, throwing out the baby with the bath water.

Before the 1991 Act, the wealthy were fined derisory sums and the poor were heavily fined, thereby ignoring the wealth and the poverty in each case. The result was that, too often, the poor were imprisoned for default, and the rich laughed at the courts because there was no penalty to deter them from committing further offences. For that reason, when the 1991 Bill was considered in Committee, it was broadly accepted that there was a need for change and a need to reform the way in which fines were imposed. It was necessary to be fair not only to the poor and to the rich but to those on middle incomes.

The problem which arose with the new legislation was that it imposed too strict a straitjacket upon the courts. Warwickshire magistrates have pointed out the problems with unit fines. In a letter to me, they set out clearly their concern about unit fines. It is a letter from the chief executive and justices' clerk to Warwickshire Magistrates' Courts Service and it is signed at the direction of and on behalf of the chairmen of the Atherstone-Coleshill, Mid-Warwickshire, Nuneaton, Rugby and South Warwickshire petty sessional divisions. They say: We rely on the fine as a punishment in the majority of cases. The concerns of magistrates tend to be about the operation of the new system"— meaning the 1991 Act— not the underlying principle. The results being thrown up are too disparate. Unit fines were piloted in four Courts around the Country and worked well. Those Courts restricted themselves to a maximum disposable weekly income of £25–£40. In the case mentioned above"— they quote some examples the higher income man would have been fined in the range of … £1,200. Magistrates would find this more acceptable. They were suggesting a reform of the system. They said that they would like to see different criteria, and that the maximum disposable weekly income figure should be at least halved, and preferably reduced by more than that; and the subordinate legislation should be altered to allow for a sliding scale of allowances to take account of the fact that the commitments of defendants tend to rise with their income. So, essentially, the magistrates were calling for reform.

The Government appear to have decided that they are going to return to the very difficulties that existed before those reforms were undertaken. The result will be—this warning must be given—that we will get again exactly the same problems as we had before the reforms were undertaken. We will have the rich laughing again at fines, and the poor being too highly fined.

I see the same problem arising with the proposals to reform sections 29 and 1 of the 1991 Act. There is, rightly, great public concern about these provisions, because they do not fulfil the requirements of good criminal law. They do not properly protect the public, reduce reoffending, or provide a deterrent.

Labour's view is that our clause would enable the courts to put in prison those who ought to go into prison, but would also ensure that the courts did not unjustly imprison those who should not go to prison. That balance must be struck. It is struck in the Labour party's amendment, but not in the Government's clause.

The Government are proposing these changes only because of the substantial pressure that has been put upon them. Their response has been so slow that they have been rushed into providing these clauses at a late stage in the process of the Bill so that proper debate on and consideration of them has been very difficult.

As late as October last year, the then Home Secretary, the right hon. and learned Member for Rushcliffe (Mr. Clarke), said before the Home Affairs Select Committee that he did not propose to make any changes in the 1991 Act for a year. He displayed the most appalling complacency about the criticisms that had been made of the sentencing provisions in that Act by magistrates—over 30 have resigned—by judges, and by the police. He felt that he could wait a year before doing anything. It was only under substantial pressure from this side of the House, from Government Back-Bench Members and from outside the House that the Government were finally forced to accept that changes needed to be made urgently.

The Labour party takes the view that sections 29 and 1 are a straitjacket on the courts. But we accept some of the analysis by Ministers who introduced the 1991 Bill. We accept that the situation before that Bill was causing problems and creating unfairness in sentencing. In our view, the case for change was overwhelming. That is why Labour and Conservative Members supported the ideas put forward in the 1991 Act.

The proposals now put forward by the Government will return us to a situation that everyone agreed did not work. We are going back to a situation that is similar to, or worse than, that before the 1991 Act. We should have been acknowledging that there was a problem before the 1991 Act, that we attempted to solve it in the wrong way by imposing a straitjacket, and that we now need to try another method of resolving the problem. The Minister is simply saying that they will scrap the attempt to remove the difficulties that existed before 1991 and go back to the situation that existed then and that was causing problems. It appears to me, however, that the clause being put forward by the Government is weaker than the situation that existed before 1991, gives less guidance, and could lead to far more difficulties than we had before 1991.

The problem is that previous convictions, in particular, should be part, as the Court of Appeal has said, of the matrix of sentencing. It said that in the case of Bailey. But as the Court of Appeal also said in that case, an offender should not be sentenced primarily for the offences which he has committed in the past and for which he has already been punished. For example, in the case of Crown v. Bailey, the Court of Appeal reduced to three months' imprisonment the sentence of a persistent offender for stealing cod fillets worth £12. Lord Justice Stocker said: There is no doubt the appellant is a recidivist and no doubt he is a thorough pest. But as the Court of Appeal has often said, the sentence imposed must relate to the gravity of the offence in respect of which it is imposed. As the Government said, injustice is more likely if the courts do not focus on the offence which is before them when they sentence. I quoted in Committee cases that illustrate the sort of problems that existed before 1991 to which the Minister seeks to return. In Crown v. Galloway in 1979, a shoplifter who stole three small items received consecutive sentences of 12 months, 12 months and six months, making a total of two and a half years. The sentence was disproportionate to the offences that were before the Court. In the case of Crown v. Skidmore, three offences of obtaining £20 by deception resulted in two years' imprisonment. Clearly, none of those offences would have merited a custodial sentence without previous convictions.

The Government, in seeking to deal with that issue, went too far in the 1991 Act. Now they do not seem to accept that they went too far and instead want to return to the previous situation. I must warn the Government that clause 64 will re-create injustices in sentencing like those that existed before 1991. The wording of the clause is too vague and makes no reference to the key issue of proportionality, which is what the Labour party says should be the basis of on which the context of sentencing and previous convictions is set. The risks of no guidance to courts are as bad as the risks of too much guidance.

In their provisions to amend section 29, the Government are lurching from one mistake to another. The public want the courts to impose sentences that deter and punish and the public want justice to be fair. The punishment should fit the crime; it should not exceed the crime. The clause will not achieve that key element of fairness and proportionality that the Labour party and the public want in the judicial system. If the Government are not careful, they will end up creating more problems than they solve.

Mr. Maclean

Far be it from me to begin by making the odd political point that may provoke a wide-ranging debate, to incure the wrath of the members of staff at the Patronage Secretary's Office, or even to provoke the hon. Member for Caithness and Sutherland (Mr. Maclennan) to intervene.

The hon. Member for Cardiff, South and Penarth (M r. Michael) said that he did not know whether to attribute the motive of the Government to incompetence or intention. What motive would he attribute to his own party and to those spokesmen who said that the unit fine system was so good that they would have liked it to he extended to Crown court offences?

I accept that Opposition Members, including those who did not at that time have their present responsibility, have now seen the light. I accept that they have seen the light, but I am slightly mystified as to why they have suggested a new proposal in the amendment that maintains some of the old rigidities of the unit fine system which we are scrapping. It is as if, rather than acquiring the characteristics of Christianity, Paul has acquired the characteristics of Herod. However, I congratulate the Opposition on coming back with an amendment that seeks to overcome some of the problems of the unit fine scheme which we discussed in Committee.

9.45 pm

I can see what the Opposition are trying to achieve, but I am sorry to tell them that the amendment will not work. Its design of a scheme that, again, applies a fixed system, but tries to allow a bit of discretion as well, is flawed. I shall not go into detail about our reasons for deciding to abolish the unit fine scheme as it stands. We went into that at great length and in good humour in Committee. However, for the benefit of those who were not there and who have not read the Official Report, I shall say that we believed that the scheme was over-mechanistic and over-complicated and that it interfered unnecessarily with magistrates' discretion to impose appropriate fines in individual cases. The amendment goes some way towards reducing those evils, but it fails to do so entirely because to do that it would have had to abolish the scheme altogether, as we have done.

Under the system proposed in the amendment, the courts would be obliged to decide the weekly amount that an offender could afford to pay and would then multiply that by the number of weeks that related to the seriousness of the offence. That would produce some strange results. Because there are no parameters on the weekly amount that the offender might reasonably be judged to be able to pay, the courts could find themselves imposing fines that many people would regard as totally out of line with the seriousness of the offence.

Let us consider one extreme first. A millionaire might readily be judged to be able to afford a weekly amount of £10,000 to pay a fine. For the famous trivial litter offence, he would therefore receive the maximum fine for that offence of £2,500. That would mean that the potential difference between fines, already considered too great by many under the unit fine scheme, would be even greater. If the same millionaire were arrested in a minor scuffle with someone who was unemployed and the court decided that they were equally guilty, for the same offence their fines could range beween £5 or less and £5,000.

There may be some who would not be especially unsympathetic towards a hefty fine, however unjust, being imposed on a millionaire, but I point out that the results would be equally unjust for offenders of more modest means. For a 10-week litter offence, a middle-income offender whom the courts judged to be able to pay £200 a week would be fined £2,000. For the same offence, an unemployed offender might be fined £40 or less. I cannot see how such wide discrepancies could be justified.

It is extremely difficult to combine discretion and such a rigid scheme. "Discretion" is defined by the "Oxford English Dictionary" as: the liberty of deciding as one thinks fit". Operating a system requires one to proceed in certain prescribed ways. I suspect that the way in which the hon. Member for Cardiff, South and Penarth really expects his amendment to work would be as follows: once magistrates had decided on the amount that an offender could reasonably pay and had then determined the number of weeks of payment that would be commensurate with the seriousness of the offence, if they did not like the result—it seems very likely that, as with the unit fine scheme, there would be occasions when they did not—they would go back and change one of those parameters to arrive at the penalty at which they would like to have arrived if penalties were not prescribed by the unit scheme.

I have no objection to magistrates adopting an informal unit model if they find it helpful in setting a fine—for example, in reaching a starting point from which they can use their discretion to depart to reach a just result. However, I am not prepared to accept a statutory scheme whereby magistrates are then, in effect, expected to fudge to achieve justice in all cases.

The clear advantage of our new arrangements over this scheme is that they give primacy to seriousness and then allow financial circumstances to be taken into account within the parameters set by seriousness. The amendment does not provide for any relationship between the two elements. The same fine could be produced by a serious offence that was rated at 100 weeks in seriousness terms at a weekly sum of £10 as could be produced by a minor one that was rated at one week's seriousness at a weekly sum of £1,000.

The amendment, allowing for discretion, mixes uneasily with the remains of a rigid system. I accept that the hon. Member for Cardiff, South and Penarth has made an honest attempt to try to come up with some form of unit fine system. However, our new arrangements provide for discretion and the guiding principles on which it should be exercised. I hope that he will agree that ours is the better combination.

The hon. Member for Caithness and Sutherland pontificated grandly, as is his wont, on the dangers of instant government. He decided that his amendments were not the appropriate ones to which to speak and that he should speak to the Labour amendments instead. He criticised the Labour amendments and what Labour Members had said as not being appropriate, but he still decided to speak to their amendments. He showed us an example of instant decision making that does not render him a suitable spokesman to condemn any other hon. Member for coming to a right decision.

The hon. Gentleman quoted from one part of Hansard, but he did not read the proceedings of the Committee as fully as he perhaps should have done. It was remiss of him to condemn me for being ill prepared and not carrying out a promise that I had apparently made, when he was totally wrong in that assertion. If he had bothered to read Hansard properly, he would have found that the hon. Member for Brent, South (Mr. Boateng) said that victims deserve and should be entitled to special consideration and we must ensure that they get it. In Committee, I said: The hon. Gentleman is right to say that it is not a Home Office matter and does not require legislation. I can give the Committee an assurance that I shall draw the hon. Gentleman's remarks to the attention of the Lord Chancellor's Department and I shall add my view that I am entirely in sympathy with what he says."—[Official Report, Standing Committee B, 17 June 1993; c. 290–91.] If the hon. Gentleman had read Hansard, he would have found that I made no promise to rush back to the House today, having undertaken to consult the Lord Chancellor in the meantime. It was wrong of him to pontificate so grandly that we are ill prepared, when he was so ill prepared that he tabled amendments which, if we had accepted them, would have made total nonsense of the Act. He decided that he did not know whether to support the Labour amendments, simply condemn the Government or dither, as is the usual wont of the Liberal Democrats.

Mr. Maclennan

With the leave of the House, it would be too much to expect the Minister to reply to the arguments deployed in the debate. It was not entirely uncharacteristic of him to devote himself to an earlier debate in which there had been a passage about the view of the Lord Chancellor. In responding simply to that point, it seems that if the Lord Chancellor was consulted, the Minister had a duty to tell the House what the Government's senior Law Officer thought about the matter.

I make it clear that I did not dissent from the view of the Labour party on the merits of its amendment—I thought that it was a good try. It is one of a number of possible approaches that one might take. The Labour party, like the Liberal Democrat party, would not believe that it made sense to propose a system of unit fines and suggest that it was the last word on the matter. Apart from anything else, neither the Liberal Democrat party nor the Labour party has Government resources at its disposal to enable it to produce schemes that will necessarily stand up to the test.

The Government have engaged in instant government. On 4 May, the Home Secretary said absolutely clearly that he agreed with the principle of unit fines but the system needed to be amended. On 13 May, he abandoned the principle of unit fines. I cannot recall a more clear example of instant government. If the Minister can cite a better example, I will happily give way to him. It is of a piece with the way in which the Government have legislated to deal with headline concerns—the introduction of the Dangerous Dogs Act 1989 and other criminal justice legislation.

It is scarcely surprising that they do not stick and that the Government must come forward with amending legislation. No doubt they will have to do the same with the Bill, once enacted, when the prisons are filled, as, predictably, they will be, with those who have defaulted because fines of unsuitable severity in comparison with their income were imposed and could not be paid.

The Minister is relatively new to his job and he would do better to address the substance of the argument than engage in the small change of petty party political abuse, which has been the characteristic behaviour of a number of Home Office Ministers of the past three years. That is not, by any means, in the best traditions of Conservative Home Secretaries. One recalls, for instance, the late Rab Butler. The Minister might choose to follow that model rather than that of some of the more recent occupants of that high office.

Mr. Michael

The Minister has recognised that we are trying to undertake the serious job of getting the legislation right. At the beginning of his speech, he sought to make the very cheap political points that he said he did not intend to make.

The Minister should be reminded that, from an early stage, reservations were sounded about section 29 of the 1991 Act and about the fine system. The method by which the fine system was implemented brought it into disrepute, as we have come to recognise. We must ensure that the new system does not replicate past problems—problems that led to many fine defaulters ending up in prison. The Minister has not, however, paid sufficient attention to that need. He should consider it carefully, because events will show whether our fear is justified or whether the legislation has been successful in getting the courts to approach the principles that we want to see observed sensibly.

The Minister was wrong when he said that our amendment did not give appropriate weight to the seriousness of the offence, because it states that the fine and the number of payment weeks will be such which in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and other offences associated with it. That is the first principle that a court must consider when it comes to punish.

The burden of penalty is different according to whether it is placed on a well-off person or on a person of average or below average means. We did not have the opportunity to consider the fine system properly when the 1991 Act went through its Second Reading and Committee stage. That system was a late and important addition to the Act, which was debated on Report and, briefly, in Committee.

Confusion and difficulty arose about unit fines because the Government decided to raise the maximum fine to £100 instead of the £20 that was set during the pilot scheme. It is clear that the system fell into disrepute. The Minister has enunciated the two principles that must be balanced. We seek to do that in the amendment.

Section 29 of the 1991 Act enables consideration to be given to previous offences. The Minister has sought to say that no warnings were given about how that system would operate in practice. The records shows, however, that section 29 was subject to much debate. The former Labour Solicitor-General, Peter Archer, now Lord Archer, said in Committee on the 1991 Act that that issue should be subject to careful thought. The then Minister, the right hon. Member for Oxford, West and Abingdon (Mr. Patten), shook his head at that request and Peter Archer responded: He does not want to give the matter careful thought. So it will be on the record for the future when we raise the problem. It is on the record that we have raised that problem.Similarly, we have properly initiated amendments to section 29 to deal with the inadequacies of the unit fine system. Our amendment led to the amendment in the long title.

I warn the Minister that he needs to continue to give careful thought to the matter. If he will not accept our amendment, I shall seek leave to withdraw it, but I warn him that he must ensure that implementation is effective and does not contravene either of those important principles.

Amendment, by leave, withdrawn.

Forward to