Criminal Justice Bill

HL Deb 05 November 2003 vol 654 cc800-64

3.15 p.m.

The Minister of State, Home Office (Baroness Scotland of Asthal)

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be now further considered on Report.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

Clause 128 [Increase in sentences for racial or religious aggravation]:

Viscount Colville of Culross moved Amendment No. 198: Page 79, leave out lines 5 to 7.

The noble Viscount said: My Lords, this group of amendments concerns hate crime. Although a number of noble Lords will be interested in this subject, I can see that many are not. I shall pause so that people will have an opportunity to listen.

Hate crime is an offence of any kind committed against a victim because of a characteristic of the victim that the offender particularly dislikes. So far the statute law has identified a number of them—race and religion—and it has dealt with them in the Crime and Disorder Act 1998 to which were attached some provisions in Section 38 of the Anti-terrorism, Crime and Security Act 2001. Since I drafted the amendment—I should perhaps have seen this before— the noble Baroness, Lady Scotland, has tabled Amendment No. 201A which adds two new categories: sexual orientation and disability. I thoroughly approve of that.

It would have been useful to have a preliminary discussion on this matter in Committee. I had intended to say something on a Liberal Democrat amendment which was tabled but in the end it was not moved because the necessary troops were not present. The matter arises out of the Select Committee on Religious Offences where my colleagues and I had a good deal of opportunity to consider the law, as it currently stands, on this point and its disadvantages. I am told that my drafting is hopelessly faulty. That is no novelty for anyone who moves amendments in this House. Nevertheless, the various points are: worthy of consideration and discussion.

I have tabled Amendment No. 199 which deals with a number of characteristics and at the end I have put in the vague phrase, or other identifiable characteristic".

The noble Baroness and her advisers do not like it. My problem is that in terms of what we already have on the statute book, we are nowhere near meeting what is currently in process, and has been for a very long time—the European Council draft framework decision on racism and xenophobia. That does not concentrate solely on race and religion or indeed on sexual orientation and disability; it deals with race, colour, religion, descent or national or other ethnic origin. The letter that the noble Baroness was kind enough to send to me stated that when all those matters turn up as problems, we shall have primary legislation to deal with them. That means that we shall have a criminal justice Bill every year, as usual. So be it. If that is the Home Office's attitude to this matter, we must put up with it.

I pick one small quarrel, although not with the noble Baroness as I know that this is not part of her portfolio. However, the issue was discussed in the report of the Select Committee. The Home Office should have replied to it within three months. It did absolutely nothing. There is one feeble letter from the junior Minister, and we have had no reaction whatever. Therefore, I think it is probably quite appropriate to raise the matter at this stage of the Bill, even if it would have been better raised in Committee.

The statute law on hate crime is in a real mess. We have had two statutes—one in 1998 and one in 2001— which dealt with race and religion. They created aggravated offences. They also substantially increased the maximum penalties for a number of fairly ordinary, but nevertheless very unpleasant, offences, sought under Section 20 or Section 47 of the Offences Against the Person Act; harassment under the Public Order Act and the Protection from Harassment Act; and criminal damage. I shall not go into the details, but, for example, under the Criminal Damage Act— not including arson or criminal damage intended to endanger life—the maximum penalties were increased from 10 to 14 years. Those are now available to the courts in cases where aggravation is established.

I should have thought that all Members of your Lordships' House would agree that where such aggravation on the basis of any hate crime is established, a court should be able to impose an increased penalty. That is exactly what is provided in Amendment No. 201 A, tabled by the noble Baroness, but only for that limited category.

The current situation is that if a person commits an offence, activated by hatred of the victim, which falls within one of the classes where the maximum imprisonment is life, there is no need to do anything about it. Nothing has been done about it. In other words, homicide offences under Section 18 of the Offences Against the Person Act—that is, grievous bodily harm to malicious wounding, both of which carry life—and offences under the Criminal Damage Act, such as criminal damage with the intent to endanger life or arson which also carry life, have not been included in any legislation so far because there has been no need. The maximum sentence being life, the court has liberty to put the correct maximum tariff on the offence.

On the other hand, we have the other sets of offences. First, there are those dealt with under Sections 29 to 32 of the Crime and Disorder Act on the basis of race, where there is an increase in the maximum sentence on the grounds that these are aggravated offences. To those were added the religiously aggravated offences under the 2001 Act, in which the courts are enabled to increase the sentence above what would be the maximum in other cases. But of course the difficulty is that the offender has to be charged with a racially or religiously aggravated offence.

That matter must be proved to the satisfaction of the jury. If the members of the jury are not so satisfied, they can of course convict—and will have to be directed to convict—on the lesser, "unaggravated", ordinary offence. If they do so, there is a major problem for the judge—or indeed the magistrates— because the one thing that cannot then be taken into account is the aggravating circumstance because that has been dismissed by the finders of fact and is no longer available as an aggravating circumstance. Therefore, it cannot be the basis of the sentence.

In Section 153 of the Powers of Criminal Courts (Sentencing) Act 2000 there is a more general power, where in respect of anything other than the Crime and Disorder Act and legislation on religious offences the court must treat aggravation as increasing the seriousness of the offence, and therefore raise the sentencing limit within the maximum laid down by the statute. But there is no increase in the maximum laid down by any other statute, and the whole thing rests entirely upon the maximum in the other legislation. There is no similar provision, as in the Crime and Disorder Act, whereby the actual maxima sentences are increased in order to deal with what is seen as the mischief. That applies only where it is not a matter of race and religion.

Now we have the amendment that the noble Baroness will move as part of this group, whereby she says that we should add to the Section 153 list the matters of sexual orientation and disability. There will be no increase in the maximum sentence, as was the case for race and religion, but, nevertheless, the seriousness can be reflected by the court in the sentence imposed. So I would suggest to your Lordships that there is legislative chaos in this particular area. There has been no comprehensive consideration of this, nor have we had any answer to the package in the report of the Select Committee on Religious Offences where we dealt with the matter.

I suggest that we should have a more general look at the point. I dare say that my amendment is wholly defective, but never mind; there is something in it that might appeal to all noble Lords. The concept is that we should no longer go along with the particularities that so far distinguish this legislation. In Amendment No. 199, I have attempted to broaden out the kinds of hostility and include the other identifiable characteristic which the noble Baroness does not like.

Then, as in Amendment No. 201 A, we have a general provision for an extra penalty being legitimate on the grounds of aggravation, if an offence is proved to have been motivated by this kind of hate crime. It does not actually have to be proved to the jury. Therefore, the judge is not debarred from imposing an increased sentence because the prosecution has not had to put the matter on a basis of a particularly aggravated offence on a specific reason. Therefore, the jury members have not had an opportunity to discuss this or to come to any conclusion on it. The matter is therefore in the hands of the judge. He will be able to look at the situation in the light of all the considerations that have come out either in the course of the crime or in looking at the antecedents.

I do not know what will happen in this kind of area as a result of the previous provisions in the Bill. I do not know what will happen to the bad character part of the Bill. I expect that it will come winging its way back from another place in exactly its original form, before amendment was made to the Bill yesterday. One way or another, either under those provisions or those passed yesterday on a Division by way of Sections 82, and so on, to the Criminal Evidence Act, the court will have a discretion on whether or not to allow previous convictions to come in as part of the evidence to the jury or to the magistrates.

It seems to me that if someone is accused of criminal damage in that he sprayed offensive graffiti on the wall of a mosque and the jury are told—if it gets to a jury— or the magistrates are told that the defendant has a number of previous convictions for graffiti and religiously motivated criminal damage—spraying swastikas on Jewish tombstones, or whatever it might be—those points would be so prejudicial to the fairness of the trial that a judge probably should not let them in. If we are determined to stick to a separate regime for race and religion whereby guilt would have to be proved on the basis of an extra motivated aggravated crime, such previous convictions would be fiercely argued as between the prosecution and the defence. They would be extremely prejudicial to the defendant's chances, as he may not have committed the previous offence or the current one.

I do not know what will happen as regards bad character; however, it is not necessary to go down that road at all. If one takes the view of the draft framework decision that there is a whole range of objections that motivate people to attack each other or each other's property, and one moves away from having cases that must be proved on the basis of racial and religious aggravation, one has a much more general situation in which courts can treat all those factors as a matter of aggravation. They may need to look at the maximum sentences currently available for the kinds of offences to which I refer. Some are comparatively small, but they may be adequate. The noble Baroness, in her amendment, has not considered it necessary to increase any of the maximum sentences in the circumstances about which she is talking.

This is an opportunity to look broadly at the area to see where we are going. I am very unhappy at the suggestion that we must pinpoint one target group after another and have primary legislation later to bring them into the system whereby the courts can treat the circumstances as seriously aggravated.

In East Anglia, where I come from, thousands of Chinese work illegally and there are many other immigrant workers whose status I do not know. The local population does not necessarily object to them as such, but they may object on the grounds that illegal immigrants are using public resources and taking jobs that others would like. I do not believe that those circumstances would lead to victims being targeted on the grounds that they are Chinese, Albanian or any other nationality; there would be different reasons. It is not good enough to wait until someone can pinpoint the exact reason why certain people have been chosen for victimisation and made the object of various offences.

The issue should be broadened. We have now an opportunity to discuss it, probably not on the basis of my amendment, but certainly on the basis of Amendment No. 201A, tabled by the noble Baroness. Perhaps we can discuss the issue more broadly to see whether we can end the extraordinary disparity between the three existing provisions and the new one that is about to be put on the statute book. This piecemeal approach cannot possibly make sense. I beg to move.

3.30 p.m.

Baroness Farrington of Ribbleton

My Lords, perhaps I may remind noble Lords that the Companion gives guidance on the length of speeches on Report. I understand the interest that the noble Viscount, Lord Colville, has in the area, but I ask noble Lords not to respond to his request for a wider debate on the issues.

Lord Avebury

My Lords, my name is attached to the amendment, as I am a member of the Select Committee on Religious Offences, of which the noble Viscount is the distinguished chairman. The Select Committee looked in detail at the concept of aggravation and made observations on it, particularly at paragraph 121, to which I drew the attention of the noble Baroness, Lady Scotland, in a letter on 1st October. As she knows, having read those paragraphs, the committee concluded that there were serious disadvantages in creating statutory aggravated offences and that the right way to deal with the matter was through sentencing guidelines. The line of reasoning is reinforced by the establishment in the Bill of the Sentencing Guidelines Council, which removes the previous potential for the objection that the courts have not always heeded the advice of the Sentencing Advisory Panel.

I wrote to the noble Baroness on 20th October about homophobic offences. She replied a few days later saying that they could not be considered until the Met had undertaken a 12-month review of hate crime, which is due to start only this month. The Government, as an afterthought, have created in their amendment a new statutory offence applicable to crimes motivated by hatred of gay and disabled people. Although I join the noble Viscount, Lord Colville, in applauding the idea, I take issue with the manner in which the legislation has been framed.

The Select Committee reported as long ago as 10th April, and five months later the feeble letter that the noble Viscount mentioned was sent by the junior Minister, Fiona Mactaggart, stating that the Government intended to provide observations on the report by the middle of last month. They have not appeared yet, but the Home Office, in what I must say is its typically arrogant way, has ignored the reasoning of the Select Committee and avoided any discussion of a matter that it knew was a proximate subject for legislation. It knew that long before the Select Committee reported, because the noble and learned Lord the Attorney-General gave evidence to the Select Committee, during which the matter was discussed in some detail.

I do not wish to incur the wrath of the Government Whip by making a long speech but I cannot resist the temptation to quote a remark by the noble and learned Lord that echoes precisely what the noble Viscount has just told us about the disadvantages of the approach. As reported at page 229 of the minutes of evidence, the Attorney-General said that, if you do charge the aggravated version of the offence and the jury acquit on that but convict of the lesser version of the offence (and sometimes juries do take what might seem to be a compromise position) it would be hard for the sentencing judge in those circumstances to take into account conduct which by their verdict the jury had ruled out". That is the situation regarding the offences dealt with under Sections 29 to 32 of the Crime and Disorder Act.

The Select Committee pointed out that the Crime and Disorder Act had no direct effect on sentencing for the most serious offences, the maximum penalty for which is already life imprisonment. We said that, where the jury was not satisfied that racial or religious aggravation was involved, but they convicted on the bare offence, as the noble and learned Lord the Attorney-General explained, the judge, in sentencing, would be unable to take motivation into account, even if the defendant had a long history of previous conduct displaying racial or religious hatred. The Committee drew attention to the guidelines that were issued by the Court of Appeal in conjunction with the Sentencing Advisory Panel in the case of R v Millberry and others which dealt specifically with homophobic rape and to the complementary initiative by the DPP to treat all homophobic crime as having aggravating indications that should be addressed in the presentation of evidence. The judge would therefore be alerted to the possibility of an increased sentence. Meanwhile, the Disability Rights Commission and others have drawn attention to the increasing frequency of crimes motivated by hatred of disabled people which they have shown affects as many as one in four disabled people.

Who on earth would have imagined a few years ago that we would be discussing these horrible offences of crimes against disabled people, motivated simply by a hatred of disabled people? Who could have imagined at the time of the Law Commission report, which led to our discussions in the Select Committee, that crime motivated by religious hatred would need to come before your Lordships' House? That is the point of the speech by the noble Viscount, which I would like to echo. In the Minister's scheme of things, if new groups become subject to crimes of hatred in the future, we would have to have a new criminal offence to deal with them. Under the scheme proposed by the noble Viscount, however, they could be dealt with as yet another group subject to the same provisions.

When this Bill comes into effect, there will be at least four different sentencing regimes associated with treatments of aggravation in our law. First, there will be the offences that attract the statutory increased penalties for racial and religious aggravation in the Crime and Disorder Act 1998. Secondly, there will be the more serious offences for which the maximum sentence is life, as I have explained, affected directly neither by the 1998 Act nor by this legislation. Thirdly, there will be all the other criminal offences to which the concept of racial and religious aggravation now applies under Clause 128, but without the increases in maximum sentences provided under the Crime and Disorder Act. Fourthly, there are the offences motivated by hostility towards gay or disabled people, all of which are to be treated in the same way as racially or religiously aggravated offences under Clause 128. That creates the anomaly that if any of the offences covered by Sections 29 to 32 of the Crime and Disorder Act is motivated by hatred of gay or disabled people, it will be liable to a more lenient penalty than if that same offence had been motivated by hatred of the religious or racial origins of the victim.

It would be much better to sweep away this arbitrary taxonomy of aggravation, and institute the single, easily understood scheme recommended by the noble Viscount, following the ideas that he developed as a result of detailed consideration and agreement by the Select Committee of which he was the distinguished chairman. Under one and the same statutory provision, the courts would have to treat every kind of group-hate motivation as an aggravating factor, and would have to say so in open court. That would lead to greater consistency and uniformity of sentencing than under the four different regimes that will exist if the Bill goes through in its present shape.

Lord Alli

My Lords, I do not wish to take much of your Lordships' time. I know that this is a complicated Bill and many hours have been spent on it. However, I could not let this set of clauses go past without recording my thanks to the Minister for introducing Amendment No. 201 A. She listened very carefully and I know that it was a difficult amendment for her to get through with her colleagues. I want to record my thanks for bringing it forward at this stage of the Bill. Many people will be affected by this provision.

3.45 p.m.

Lord Dholakia

My Lords, Amendments Nos. 201 and 201B in my name and that of my noble friend Lady Harris of Richmond are grouped with Amendment No. 198. Our amendment also has the support of the noble Baroness, Lady Darcy de Knayth. I endorse Amendments Nos. 198, 199 and 200 in the names of the noble Viscount, Lord Colville of Culross, and my noble friend Lord Avebury. These three amendments follow the reasoning of the Select Committee on Religious Offences, in chapter 9, which deals with aggravation. It would be helpful at some stage to see the Minister's reaction to those amendments.

I fully endorse what has just been said. Miracles do happen from time to time and I want to grab this one as fast as I can. I am delighted that the Government have accepted our case for increased sentences for offences aggravated by reference to disability and sexual orientation.

We were impressed by the case made by the Disability Rights Commission, which identified hate crime against disabled people as a major human rights issue. My noble friend Lord Avebury cited the statistics. What is frightening is that nine out of 10 people with learning difficulties have had their self esteem, dignity and personal safety robbed by verbal or physical abuse or harassment. Such harassment often cannot be dealt with because the significance of such action may be lacking in law. I am delighted that the Minister has now decided to put that particular right. We now have provision in statute to ensure that crimes involving harassment by reference to disability or sexual orientation can be dealt with by the courts.

We support government Amendment No. 201A. With that in mind, we will not move our Amendment No. 201B. I have one minor concern: those who have studied matters relating to racial attacks and harassment are aware that many times, the aggravating factor based on race, colour, national or ethnic origin is ignored by the prosecution because it is difficult to prove. In some cases, the original offence is sufficient to convict and the CPS has been reluctant in the past to give added emphasis to aggravating factors. That is why our Amendment No. 201 is important. We need systematically to collect and interpret data relating to these offences. That would indicate how effective the provision has been. Without such a system of monitoring we would be unable to identify how many cases are proceeded with in which aggravation is a factor.

Much credit goes to our judiciary, which has not hesitated to pronounce increased sentences when aggravation is a factor. That is a good example of how we can all influence public opinion. The Government obviously have our support in the action that they have taken.

Baroness Carnegy of Lour

My Lords, will the Minister be speaking to her amendment? It is difficult for those of us who are new to this debate to know what everyone is discussing when she has not yet spoken to her amendment. Presumably she will, and will wind up quite separately.

Baroness Scotland of Asthal

Yes, my Lords, I will.

Lord Waddington

My Lords, it may be convenient for me to speak now. I want to express my concern about Amendments Nos. 201A and 201B and Clause 128 in so far as they refer to sexual orientation. I know how strongly the noble Lord, Lord Alli, feels about these matters and how he is absolutely sure that it is necessary to make this change in the law to see that injustice is not done and that gay people are properly protected. However, I think that he appreciates that there is another side to the argument that should be expressed.

Many people who harbour no ill will to people of homosexual orientation still feel very strongly that homosexual acts are wrong. That is the view that is commonly held by churchmen, who rely on the biblical prohibition of homosexual practice. Not surprisingly, some may be compelled from time to time to speak out affirming their belief. On the other hand, many homosexual rights extremists view any disapproval of homosexual behaviour as hostility to themselves as individuals and feel entitled to react to such hostility with violence. I drew to the attention of the House some months ago a newspaper report of a vicar in Southampton who stood on a soapbox and expressed his views about homosexual practice. As he made his speech, he was pelted with missiles thrown by people in the vicinity. The police came on the scene and arrested not the men who were committing acts of violence, but the vicar. Some people felt that that was a bizarre result. There is some reason 10 think that, if the government amendment, in particular, became law, such occurrences would occur more frequently.

I say that because of the interaction between the new clause and Section 154 of the Criminal Justice and Public Order Act 1994. That Act created a new Section 4A(1) in the Public Order Act 1986, which says: A person is guilty of an offence if, with intern to cause a person harassment, alarm or distress, he uses threatening, abusive or insulting words … thereby causing that or another person harassment, alarm or distress". If the new clause became law, a gay rights activist could argue all too easily that words of hostility towards homosexual acts were words of hostility towards those of homosexual orientation who heard or read them and that the words were insulting and, therefore, amounted to the offence of harassment.

In other words, the new clause, although purporting to be about increases in sentences, enlarges what can be said to be harassment. An imam expressing disapproval of homosexuality in a local paper could find himself confronted by activists claiming that he had caused distress to local homosexuals by his hostility to their sexual orientation. Activists could demand the prosecution of a clergyman preaching a sermon that referred to the biblical prohibition on homosexual practice.

That is why I do not like the clause. I fear that it may be used by homosexual rights extremists to attack free speech and attack all those who dare to criticise them, not for what they are but for the way in which they conduct themselves and the way in which they seek to influence others. That would be unfortunate.

Baroness Warnock

My Lords, I agree strongly with the amendment moved by my noble friend Lord Colville of Culross. It would be mistaken to list categories of groups of people to whom the idea of aggravation can apply without leaving flexibility for other groups that we may not yet have thought of who may be victims of the same abuse or violence.

I have in mind particularly the kind of violence that is frequently inflicted on people who are, in a broad sense, members of the group of users of animals in laboratories. Often, that is used as an excuse for a personal attack on somebody who works in a laboratory or his relatives. That is just one example of the kind of area in which the concept of aggravation may be necessary. It would be rash to close the list of such groups, even with the extension now before us. Flexibility is extremely important.

Baroness Harris of Richmond

My Lords, I could not agree less with the views just expressed by the noble Lord, Lord Waddington. With regard to the amendments in my name and that of my noble friend Lord Dholakia, I shall talk particularly about Northern Ireland, in order to ensure that that subject is placed on the record.

I speak first to Amendment No. 201.I was delighted to hear the Secretary of State announce that the new legislation to deal with sectarian and racially motivated crime in Northern Ireland would be extended to include crimes motivated by hatred of sexual orientation. That step is extremely welcome. Undoubtedly, sectarian crime is the most prevalent form of hate crime in Northern Ireland, but other forms of hate crime are on the increase. The police started collecting figures on racially motivated crime in Northern Ireland in 1996. Then, 26 such crimes were reported; by April this year, the figure was up to 226, an increase of 769 per cent. Those figures are taken from the Chief Constable's report and are available on the website of the Police Service of Northern Ireland.

In a BBC Online report on 27th June, the Equality Commission was reported as stating that racist attacks in Northern Ireland were running at a higher level than in England and Wales. My colleagues and I have heard of some hideous racially motivated crimes in Northern Ireland. Families have been intimidated out of their home; properties, such as the Indian community centre in Belfast, have been continually attacked; and there have many vicious attacks on individuals. One Chinese gentleman was beaten so badly during a mugging that he needed 195 stitches: he was carrying only £2 or £3 at the time.

Racial hatred is as important a matter to deal with as sectarian hatred, but so are other forms of hate-related crime. The Government have taken the welcome step of proposing to extend their hate crime legislation in Northern Ireland to include crimes motivated by hatred of sexual orientation. I am delighted about that, because reporting of hate crimes can be a complicated and distressing business. The Government have consulted on hate crime, but, until now, that process has not included dealing with homophobic crime. One incident reported to me involved a young man who went to a police station in Northern Ireland to report a homophobic crime. He was given the wrong form to fill in because the police had no idea how to deal with the incident. The collecting and interpreting of hate crime data will be essential, if we are to have proper reporting of such offences.

Can the Minister assure me that she will examine the wording of the forms and the procedure for reporting such crimes? Furthermore, will she ensure that the procedure is simple, clear and unequivocal and that the message about such crime is clearly understood? Will she further indicate that crimes of that nature in Northern Ireland will be treated with the utmost seriousness and severity of punishment? Finally, will she undertake to consider the possibility of installing a free phone number for people to report all incidents of hate crime?

Amendment No. 201B is about treating hate crime as an aggravating factor that increases the seriousness of the offence. It follows the Minister's amendment on stating in open court that the offence was so aggravated. The wording is similar, so I shall not repeat it. I just wish to encourage the Government to ensure that they put in place effective monitoring, once the measures are in place.

The Scottish Executive have indicated their willingness to put into legislation extended protection for disabled people, gays and lesbians, older people and women. I cannot help thinking that such an all-encompassing approach is the right one. In Northern Ireland, crimes against disabled people are not prevalent, but the Government were reluctant to put in place measures to combat racially motivated crime in Northern Ireland back in 1998, when the Crime and Disorder Bill was going through Parliament. They said then that racism was not a sufficiently serious problem there. I sincerely hope that we do not see an increase in crimes directed against people because of their disability or their gender, but if we are going to consider legislation on sectarian, homophobic and racial crimes, it would be appropriate to legislate for all forms of hate crime, in order to show our commitment to the many thousands of people who suffer lack of protection from some appalling criminal behaviour.

I look forward to seeing the Government introduce legislation for Northern Ireland in this area as soon as possible.

4 p.m.

Lord Hylton

My Lords, my first point concerns Amendment No. 201. How is the Secretary of State to collect and interpret data on the reporting of offences manifesting prejudice? Does that mean press reporting or court reporting? If it is to be the latter, that is rather more understandable because the facts will have been brought out and a decision will have been reached.

My second point concerns an important issue raised by my noble friend Lord Colville of Culross about sentencing guidelines being a preferable means of dealing with the problems rather than legislating separately for each category of aggravated offence. When the Minister replies to the whole debate, I hope that she will spend some time on that point.

Lord Monson

My Lords, all the amendments in the group—none of which was discussed in Committee, even obliquely, as far as I am aware—can be criticised on a number of points. For example, the very idea of a "hate crime" is ridiculous and misleading. Hate crime is an American concept, which would have been laughed out of court on this side of the Atlantic 20, or even 10, years ago.

I say "misleading" because if a man attacks and perhaps kills his business partner, who he finds has embezzled every penny from the partnership leaving the victim totally destitute, it is not counted as a hate crime. Similarly, if a man kills his wife's lover, it is not classified as a hate crime provided that the lover is male. If the wife's lover is a lesbian—as occasionally happens, to my certain knowledge—it is a hate crime. How preposterous can one get?

The conferral of group rights, which would be the effect of the amendments standing in the names of my noble friend Lord Colville and the noble Lord, Lord Avebury, is another North American innovation, although Canadian in this instance rather than American. As I understand it, in Canada, groups are deemed to have the same rights as individuals, if not greater rights; but at least my noble friend Lord Colville and the noble Lord, Lord Avebury, are being consistent in trying to protect all identifiable groups, unlike the Government who are being extremely selective.

It seems that the noble Lords' amendments are designed to protect not only those with unusual sexual habits and the disabled, but also all other visible minorities. For example, fox-hunters, motorcyclists, joggers, non-disabled elderly, bald men, grammar school pupils and rough sleepers, to name but a few, sometimes attract hostility, as well as those often attacked in pubs and barrack rooms by virtue of speaking with the wrong accent in the wrong place. Those who speak with Scottish or Welsh accents are already protected; not so those who speak with Geordie or West Country accents in the south-east of England.

In contrast, government Amendment No. 201A is capriciously selective, as is Amendment No. 201B, and would result in even greater anomalies. If a cyclist pedalling furiously along a road or a pavement ran into a pedestrian—as happens all too often nowadays—and shouted, "You fool; are you deaf or something?", he would be caught whether or not the pedestrian was deaf. But if he shouted, "You silly old git" or "You silly old cow", he would be quite safe.

All the amendments are designed to provide extra protection for some. In law, we are all entitled to protection from the state, but these provide extra protection for those with minority sexual orientations, including paedophiles. Clearly, paedophilia is sexual orientation; there is no doubt about that. Above average protection would also be given to those people with some of the more bizarre orientations discussed in this Chamber just a few months ago in the course of the Sexual Offences Bill. I make no comment. I merely draw that point to your Lordships' attention.

When all is said and done, what difference does it all make to the victim? If a middle-aged, female cloakroom attendant, who happens to be black, is punched hard in the face by a drunken, teenage, female pop singer—most of us will have read about this recent case—the victim is hurt just as much and the cheekbones bruised for just as long whatever the motive or mixture of motives of she who threw the punch. I realise that in raising this latter point I can be accused of trying to shut the stable door after some of the horses have bolted, and bolted for good. I am trying to prevent a great many more horses simply bolting.

Lord Lucas

My Lords, I would be very grateful if the Minister would move her amendment because I wish to speak to it. I want her to move it first.

Baroness Anelay of St Johns

My Lords, it might be more helpful if I intervened now. I have a great deal of sympathy with the objectives of the noble Viscount, Lord Colville of Culross. Sadly, he may be disappointed to learn that I shall not support the amendment if he divides on it, for reasons that I shall give. But I do have sympathy with the objectives.

I have sympathy, too, with the fact that today we are having what is really a Committee stage debate. As the noble Viscount said when introducing the amendment, that is no fault of his. It was merely an accident of fate, for very good reasons, that it was not possible for these amendments to be moved in Committee. Some noble Lords might say that it was open to the noble Viscount or other noble Lords in Committee to seize the opportunity and to move someone else's amendment. But we would all accept that at the time that would have been bad form. Therefore, being good form, the noble Viscount did not pursue that.

Perhaps I may refer briefly to the amendments. The noble Viscount is right that it is not satisfactory to have a piecemeal approach to legislation in this respect—I would say in any respect—but certainly with regard to these definitions and protections. It is the right time to have an overall look at the codification and to have a proper approach.

My noble friend Lord Waddington pointed out some of the difficulties that arise in competing legislation. But we must be grateful for small mercies, one of which is that because we have had time between Committee and Report, the Government have been able to reflect. They have tabled today an amendment that I strongly support, which is against the background that I would prefer the more far-reaching review that the noble Viscount called for and which I hope that the Minister may be able to direct us will happen in future.

It is difficult at this stage when the Minister's amendment is grouped with others. My noble friend Lady Carnegy is right to ask for some latitude. If Back-Benchers wish to ask the Minister questions, perhaps they may do so succinctly and within the rules of Report after the Minister has moved the amendment. I guarantee that I shall not do so.

Baroness Farrington of Ribbleton

My Lords, the Minister will speak to the government amendments. She may not move them because only the first amendment in the group may be moved. She will speak to them when she replies and has taken careful note that, within the rules, questions and factual information could be addressed to the Minister when she is replying to the whole debate.

Lord Lucas

My Lords, I have been in the position of the noble Baroness often enough and long enough to know that, under these circumstances, the Minister should move or speak to her amendment, along with others who are moving amendments in the group, to give everyone in the House an opportunity to hear the arguments so that they can address them in their speeches. We get only one opportunity to speak at Report. It was always the way in which things were done when I was doing it. It would be far the best for the House if the noble Baroness would do it that way. It is quite within the rules. I encourage her to take the opportunity to speak to her amendment now.

Lord Thomas of Gresford

My Lords, perhaps I may have a little interlude before the noble Baroness does that. I see that she is advised by the Table that that is the proper approach, as the noble Lord has said.

With the greatest respect, I take issue with the noble Lord, Lord Monson, when he says that there is no such thing as "hate crime". As I see it, from experience, in our society there are young men who go around in groups and packs, tanked up with alcohol and perhaps drugs, to seek a target. That target may be someone who is different on account of their race, religion, disability or sexual orientation. I do not believe that those categories should be closed because those young men will single someone out and attack him simply because he is different.

What binds together all these forms of hate crime is that the person who is attacked is someone who is completely inoffensive and has done nothing to the group that is seeking to work out its aggression on that particular individual.

Perhaps I may cite an example from my home town. Noble Lords may recall that during the summer there was a suggestion that race riots had broken out in Wrexham. I found that ludicrous, having been brought up within a matter of yards of the place where the alleged race riot took place. Certainly the disturbance on the first day involved a group of asylum seekers who attacked a local public house. However, on day two a large disturbance broke out because police in riot gear were called in from Liverpool. That action brought into Wrexham every troublemaker from the surrounding villages and some 250 gathered to attack the police; they had their excuse and that is how they worked off their aggression.

I do not make that comment as a result of any personal insight into the particular affair, but Judge Roger Dutton, when passing sentence on many of those people only a week ago, made the point: this was not a race riot or a riot against the asylum seekers, and we do not regard ourselves as a race apart from Liverpudlians. Rather, this was an occasion when young people vented their aggression on the police, and that is what hate crime is all about. It is the act of attacking a person simply because he is different.

I think that the approach taken to this by the noble Viscount, Lord Colville, and the approach adopted on these Benches is absolutely right. If people in an identifiable category are attacked in circumstances of the kind I have described, those crimes should be described as hate crimes and the perpetrators punished accordingly.

Lord Marsh

My Lords, I wish to put one question to the noble Lord because I genuinely seek the answer. Is he really saying that, if an elderly couple in a flat are badly beaten up and, say, one of them is black and the other white, because the assailant is a racist as well as a thug and uses racial abuse against the one but not against the other, such a crime should attract two different sentences?

Lord Thomas of Gresford

My Lords, I am saying exactly that, as the noble Lord pointed out.

Viscount Bledisloe

My Lords, before the noble Lord sits down, taking his Wrexham example, are not the police a group with a number of identifiable characteristics? Is not hatred of the police a well known facet, not only in Wrexham but in many other places? Is a football team or its supporters another identifiable characteristic? Almost everyone could beat up someone other than a personal enemy; almost everyone will have one or other category of person that they dislike. Where would the noble Lord stop?

4.15 p.m.

Baroness Scotland of Asthal

My Lords, I think that I can now satisfy the noble Lord, Lord Lucas, with propriety because I intend to speak to my amendment and to reply to the amendments moved and spoken to by other noble Lords. That will give the noble Lord an opportunity—

Lord Lucas

No, my Lords, absolutely not. I want to speak to the amendment moved by the noble Viscount, Lord Colville, as well. The ordinary way of doing things in this House is for the Minister to move her amendment at the beginning as a part of the grouping. That would give noble Lords an opportunity to listen to her arguments and reply to them. I was in her position and I have done exactly that often enough.

I understand that the noble Baroness is not going to choose to take that course on this occasion, which I regret. Therefore I shall direct my speech now to the amendment moved by the noble Viscount, Lord Colville, and try to imagine what the noble Baroness means in her amendment. That is difficult because I have not heard her speak. She will sound off on her amendment and we shall be given no decent opportunity to reply to it or to integrate what we have to say about the other amendments in the grouping with what she will say about hers. I find that a profoundly unsatisfactory way of dealing with a government amendment, and I am sorry that the noble Baroness is choosing this course.

I wish to make a speech on the grouping as a whole, but the noble Baroness has chosen not to present her part in it because she has the right to respond at the end of the debate.

Lord Avebury

My Lords, I think that the noble Lord has omitted to read the Companion, which states that, on Report, noble Lords may not speak after the Minister.

Lord Lucas

My Lords, the Companion also states that the Minister has the right, if she so wishes, to speak to her amendment earlier. That is a right which I used myself on many occasions when I had the honour to sit in her position, or rather in the position of the noble Baroness the Lady in Waiting. The noble Baroness has the ability to do that and it would make things better for the House.

Baroness Scotland of Asthal

My Lords, can I make it plain that I am perfectly content to speak now so that the noble Lord, Lord Lucas, can say anything he likes about my amendment? I have been patiently taking advice as regards how I can respond with propriety and I am anxious to do so. I shall now speak to my amendment—

Lord Lucas

My Lords, no. I wish to speak to the amendment moved by the noble Viscount, Lord Colville. If the noble Baroness now speaks in the way she wishes, I shall not have the opportunity to do so.

Baroness Farrington of Ribbleton

My Lords, it is my understanding of the rules set out in the Companion that the noble Lord may speak to all the amendments in the grouping together. The amendment which has been moved and is now before the House is the first amendment in the grouping. All the other amendments which noble Lords have agreed to include in the grouping may be spoken to or may not. My noble friend on the Front Bench has agreed to speak to her amendments within the group. The noble Lord, Lord Lucas, will then be able to make his speech on any or all of the amendments within the group.

Baroness Scotland of Asthal

My Lords, I hope, with that clear exposition, that the noble Lord is at last content. I had somewhat naively believed that grouping my amendments with these would give noble Lords a little pleasure. I understand entirely that that is an aspiration which I should no longer hold.

Perhaps I may say straightaway to the noble Viscount, Lord Colville, that I understand his concerns in relation to this group of amendments. I understand, too, that his amendment seeks to create a generic offence of hate crime into which members of any group could fall if they were to exhibit the characteristics which could qualify them for and merit the additional sanction or protection which the designation of a hate crime would provide.

I understand, too, that while the drafting may be flawed, it was crafted so that we could have the advantage of debating these issues properly and provide proper protection for those who may have a peculiar vulnerability and be subjected to hate crimes. Therefore, there is no question of disparaging the amendment because it has given us the opportunity to do what we have now enjoyed for one hour and two minutes; namely, to debate this issue. For that, I hope the noble Viscount will not be too surprised when I say that I thank him.

Perhaps I may start by saying how much I welcome the concerted effort which has been made by several Members of this House to highlight the plight of victims of hate crime. As many noble Lords have pointed out, all forms of hate crime are pernicious and the Government must keep as a priority the need to tackle such crime in whatever form it takes. Of course I hear the remarks of the noble Lord, Lord Monson, who said that the notion of hate crime is ridiculous and misleading; that it is a North American innovation which we could do without. That may be his view, but the reality is that, regrettably, hate crime is with us and, tragically, many innocent and vulnerable people are subjected to such crimes. We now have an opportunity to do something that will give better protection to those who are so subject.

I hear, too, what the noble Lord, Lord Avebury, and the noble Viscount, Lord Colville, say about the failure to respond properly and comprehensively to the Select Committee report. I am told that the Select Committee report is detailed, weighty and deserving of a comprehensive response. This is now being undertaken and we are hopeful that our completed response will be available at some stage next week. That is our most realistic expectation. I unreservedly apologise that it has taken so long. I hope that when they see its contents the noble Viscount, Lord Colville, and the noble Lord, Lord Avebury, will consider that it was worth the wait.

Let me now turn to the amendments of the noble Lord, Lord Dholakia, and those of the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord Avebury. I shall first outline some of the background to satisfy the desire of the noble Lord, Lord Lucas, and the noble Baroness, Lady Carnegy— who is not in her place at the moment, but I am sure that she will return to the Chamber—to know what we have been talking about for the past little while.

We have listened very carefully to the arguments on the subject of hate crime and have concluded that there is more than enough evidence to support extending the current requirement on courts to increase sentences for racially and religiously aggravated offences to include offences aggravated by hostility towards: the victim because of his or her sexual orientation or disability.

The noble Lord, Lord Avebury, referred to the evidence given to the Select Committee by my right honourable and learned friend the Attorney-General. However, it is important to remember that what my noble and learned friend said was his own view. On page 228 at paragraph 667 he said: My own view is that there are advantages in having a separate offence as a matter of principle because it enables Parliament to send a very clear and loud message that particular conduct is not going to be tolerated". That was my noble and learned friend's view, with which both I and the Government concur.

Lord Avebury

My Lords, so in other words the Government and Parliament are sending a loud message to the people who commit hate crimes against those who are characterised by their religion, lack of religion or racial origin, but not those who are characterised by sexual orientation or disability?

Baroness Scotland of Asthal

My Lords, that is not what I am saying. We believe that the government amendments state very clearly indeed that the Government feel such issues should not be tolerated.

Let me now deal with the issues raised by the noble Lord, Lord Waddington. He referred to the worry that many will have that comment which is adverse to others may somehow be used as the basis for aggravation and prosecution. That is not the purpose of these clauses.

Such offences are worryingly common. A survey carried out by Stonewall and published in 1996 found that 32 per cent of those surveyed had experienced homophobic violence in the past five years. That figure rose to 48 per cent of young people under the age of 18. So we are not talking about people whose feelings may be tenderly hurt or touched; we are talking about people who are suffering violence and difficulty and whose lives are being made very miserable indeed by such actions.

Lord Waddington

My Lords, I am grateful to the Minister for the patient way in which she is dealing with the point that I raised. She obviously understands that I am not attacking for one moment the proposition that someone who assaults another because that other is a homosexual should not suffer a dire penalty. I am merely suggesting that the interaction between the new clause and the law of harassment could result in private individuals bringing private prosecutions to the embarrassment of us all.

4.30 p.m.

Baroness Scotland of Asthal

My Lords, we will still have the benefits of the Human Rights Act and the need for proportionality and propriety. The courts will have to determine whether such issues fall within or without the Act. We cannot legislate for the perverse. I cannot say to your Lordships that there will not be an individual who will seek to take improper advantage of the legislative framework that we have put in place, but we believe that the good sense of the judiciary and the way in which the legislation has been framed will ensure that those who seek to take such advantage are brought to a quick, sticky end. I do not mean a permanent end, but an end in terms of the way in which the litigation will be dealt with.

The Disability Awareness survey of 2001 found that a quarter of the disabled people surveyed had experienced harassment. A Mencap survey found that 90 per cent of people with a learning disability suffer from bullying on a regular basis, and a quarter reported physical assault.

Many of these offences are not reported to the police because of a lack of confidence that the criminal justice system can adequately deal with them. ACPO is aware of the problem. In most parts of the country, lesbian and gay police liaison groups work with the police to encourage reporting, respond to violent incidents, support victims and often also cover issues such as homophobic bullying. We believe that legislating will send a clear message to offenders, victims and witnesses that these very serious offences will not be tolerated.

It is appropriate at this point to mention Amendment No. 225B, which is a consequential amendment to Amendment No. 201 A. It changes the definition of aggravation by sexual orientation for the purposes of Schedule 19—"Determination on minimum term in relation to mandatory life sentence"—to that used in the new clause on hate crime.

I thank the noble Lord, Lord Dholakia, for indicating that he will not move the amendment standing in his name and that of the noble Baroness, Lady Harris of Richmond, because it is very similar in effect to the government amendment. The only difference is that it includes hostility towards the victim because of gender as an aggravating factor. We do not believe that this is necessary. I am content that the noble Lord has indicated that he is also so content. Given that we have acted on recommendations from around the House, I hope that there will be no difficulty in dealing with the matter appropriately.

Amendments Nos. 198 to 200, which have been tabled in the name of the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord Avebury, have a somewhat different effect from that of the government amendment, although I believe that the principle behind what we seek to achieve is very similar. If I understand the amendments correctly, their effect would be to apply the maximum sentences specified for racially and religiously aggravated offences in Sections 29 to 32 of the Crime and Disorder Act 1998 to offences aggravated by race, religion, lack of religion, sexual orientation or other identifiable characteristics. This would enable sentencers treating such features as aggravating factors to pass sentences greater than the maximums currently in place for certain offences. The amendments would also give the police power to arrest a person without a warrant whom they reasonably suspect of committing an offence motivated by hate.

The first difference between these amendments and ours is the inclusion of hostility because of any "other identifiable characteristic" as an aggravating feature. "Any identifiable characteristic" is very wide, as many have said. Furthermore, we do not believe that we should legislate on the basis of any possible future need but rather on the basis of evidence, which we believe we have seen in the cases of hate crime against gay and disabled groups. If other groups are targeted by hate crime in future, the proper procedure will apply. The evidence will be put before the House in the context of the Bill and the House will decide whether it is appropriate to legislate or no.

I now turn to the application of increased maximum penalties for offences aggravated by hatred of a particular group. Let me say that I personally hope that we will not have a Criminal Justice Bill every year, not least if I have the honour of still holding my current position.

We decided against creating aggravated offences and decided instead to provide for aggravating factors that would increase the severity of sentence without altering the maximum penalty overall that is available. We really do not think it is appropriate to increase the maximum penalties for these specific offences. A maximum sentence is set at a level which enables the sentencer to consider all the aggravating factors—that is, the worst case scenario for that offence. These have been set at the level deemed by Parliament to be appropriate. The racially and religiously aggravated offences were created specifically for a set purpose, and this cannot simply be applied to other aggravating features.

It is also inappropriate to apply the powers of arrest in Section 31 of the Crime and Disorder Act to offences where the aggravating factors are to be taken into account. There is no demonstrable need for the increased powers of arrest in this context. On the basis of these arguments, and given the strong level of support for the government amendment from the House and from relevant stakeholder groups, I hope that noble Lords will be prepared to withdraw their amendments.

Amendment No. 201, in the names of the noble Lord, Lord Dholakia, and the noble Baroness, Lady Harris, seeks to specify that data collected under Section 95 of the Criminal Justice Act 1991 should include certain group characteristics. The Secretary of State is required under Section 95 of the Criminal Justice Act 1991 to publish annually such information as he considers expedient for, facilitating the performance by such persons of their duty to avoid discriminating against any persons on the grounds of race or sex or any other improper ground". As part of the Government's commitment to driving out hate crime, we are carrying out a review of the hate crime investigation manual in association with the Association of Chief Police Officers. This full-scale review, which will also consider how hate crimes are monitored, will be widely consulted upon. Without pre-empting the findings of that review, we feel we have the processes in place that will drive the changes in policy and investigations that we all seek in this area.

I remind the House that we are expending £1.16 billion on the criminal justice IT to try and bring about a much broader and more comprehensive understanding of what exactly is happening in the criminal justice system so that we can get the empirical data upon which we will be better able to craft policy and legislation in the long term, because we really need to understand what works. As that comes on stream, we will be able to utilise the IT to make sure that we are getting the sort of data that will help us do the work we need to do. I say to the noble Lord and the noble Baroness that the combination of those two factors should inure to our advantage, and it is for that reason that we will resist their amendment.

The noble Baroness, Lady Harris, spoke about Northern Ireland. She is quite right that we have announced our intention to legislate by Order in Council on increasing sentencing for offences motivated by hatred of the victim because of his or her sexual orientation. This is because, as the noble Baroness indicated, there is, rather tragically, a particularly high incidence of homophobic crime in Northern Ireland. We are also considering the issue of hate crime against disabled people in the light of the Government's amendment to the Criminal Justice Bill. The Northern Ireland Office will be looking at that very keenly indeed.

The noble Baroness asked a whole series of specific questions in relation to Northern Ireland. Bearing in mind the stage we are at, rather than my reciting the answers to her, it might be preferable if I write to her on those matters. I hope that she will not find me discourteous if I take that course.

I have tried to interweave the answer to the issue raised by the noble Lord, Lord Thomas of Gresford, into the answers I have given so far. I hope that he will feel that he, too, has the answers he needs in that regard.

I wish to thank my noble friend Lord Alli. He speaks with some conviction and passion for those who have not had a voice in the past. It is important that we take into account that those who may disagree with the nature of others' sexual orientation should appreciate that, in terms of equality of treatment, everyone needs the protection of the law in a way that is meaningful and fair. We believe that this is a proper recognition at this stage, together with the proper recognition that we have a duty to be fair and appropriate towards disabled people.

I hope that I have replied to all noble Lords—I incorporated the concerns of the noble Lord, Lord Hylton, in the questions that I sought to answer.

Lord Lucas

My Lords, I shall take this opportunity to thank the noble Baroness for that explanation of her amendments. I support them—I entirely agree that this is a good thing to do. However, it is interesting to note, first, what she said at the end of her remarks about everybody needing the protection of the law—I shall come back to that. Secondly, it is interesting to note how extreme, in a way, her amendments are. In the same way as they protect the homosexual community, they protect paedophiles. We are saying—and I think it is quite right—thai: they, along with every other group in society, are entitled to the protection of the law. If someone is pursued by a newspaper or a mob because of their paedophile tendencies, they will be entitled to the: protection provided by the amendment.

I think that gets very close to the Government agreeing that this is a general crime—that everybody is entitled to this sort of protection. A crime of this sort is not just a crime against the person it is committed against, it is calculated to strike fear, and prolonged fear, into the hearts of those who share whatever characteristic it is that someone is being persecuted for.

If we are to support the Government in going as far as they have in this amendment, then, as the noble Baroness, Lady Warnock, and I agree, we ought to look at protecting those who are persecuted and have been persecuted for a very long time by animal rights activists. Indeed, the Government are expending very large sums of money in supporting companies which have been brought to the brink of destruction by animal rights activists. Many people have suffered over a long time, yet they are not to be offered the sort of protection which is now to be extended, quite rightly, to the homosexual community.

The homosexual community has had to suffer a long time before getting the benefit of the new clause. There is a great deal to be said for the proposal by the noble Viscount, Lord Colville of Culross, that we should recognise the generality of this. If the intention of someone committing a crime is not only to harm the person whom they are committing the crime against but to harm a lot of other people of similar persuasion or similar condition as well, that should be taken into account in the sentencing. That is a general proposition. I cannot think of a single instance of a group of people into whom it is desirable that someone should strike fear, or make them believe that they were likely to be subject to similar crimes—because we are talking about crimes and not about reasonable protest. It is a universal wrong. Just because they are not many or their voices are not loud enough, it is not right for a group of people to have to suffer for as long as the homosexual community has had to suffer. Presumably, those who are suffering from animal extremists have suffered for quite a long time, too. We should recognise that, however few they are, they are suffering.

By making the law simpler and more universal, we can stop that evil arising, or deal with it as best we can, well before it reaches the same level of problem for another group, and before that group suffers the years of suffering that the homosexual community has had to endure. Queer bashing was something that I knew about when I was young; there has been decades of it, and now we are dealing with it. How many decades will those who work for Huntingdon Life Sciences and other animal scientists have to wait in fear before the Government decide that they have suffered enough to receive similar protection?

Viscount Colville of Culross

My Lords, I am grateful to those who have taken part in the debate. The noble Baroness, Lady Farrington, will be bitterly disappointed that it has gone on for as long as it has, but the fact is that the Liberal Democrat amendment tabled at Committee stage has blossomed. Not only has it caused me to table my doubtless faulty amendment, but it has led to a huge acceleration of the way in which the Government have dealt with matters that they have been discussing for some time. That is why we have government Amendment No. 210A, and those consequential on it. For that we should be thankful.

I am not going to press the amendment, not because the noble Baroness, Lady Anelay, says that she and her colleagues will not support it—one never knows what they are going to support at the present moment, but I now know that they are not going to support this amendment—but because I know that there are deficiencies in the drafting and that it would not be sensible for me to do so.

The noble Baroness, Lady Scotland, can take away a few messages from the debate, and I am sure that she will do so. She has been ready to listen to what noble Lords have to say. First, on the question of categorisation, a number of noble Lords have given further examples of cases in which there should be protection. I am sure that there is no end to that sort of categorisation, and I am not at all content with the idea that we should have to have primary legislation every time one crops up. The assessment being done with ACPO may have the effect of producing a collection of new categories; I hope that it does and that it is conclusive, so that we do not have to have this piecemeal legislation. I encourage that process to go ahead and hope that results will be seen fairly soon.

Secondly, as noble Lords have made clear, it is not satisfactory to have four different methods under statute for dealing with this sort of situation. That suggestion was not denied. If the Minister does not wish to have the maximum sentences increased for offences of hate crime against people on account of their sexual orientation or disability, why must she have increased maximums for race and religion? There is no logic to that.

Such legislation has always been done piecemeal— it was done in 1998 and 2001, and now it is being done differently in 2003. The Home Office should rationalise its approach. If the courts are to be trusted with aggravating circumstances and enabled to pronounce increased sentences on that account, the Home Office should consider the maximums and see whether they are adequate; if they are not, they should be brought into line with the race and religion provisions and, if those maximums are excessive, they should be reduced. Let us have a level playing field without all the different categories. If that is done, something valuable will have come out of this debate, and provisions would then be much more easily implemented in relation to other categories that might be proposed, such as those referred to by the noble Lord, Lord Lucas, and my noble friend Lady Warnock.

I am not going to take the matter further today, but I hope that the Minister will not give up her efforts. She has evidently been spurred on by the interest in this House to introduce the amendments. I strongly suggest that we support Amendment No. 201A and the consequentials on it. Nevertheless, we have not reached the end of the story yet. The debate may have illustrated to the Minister and her colleagues, and the officials in the Home Office, that this is unfinished business and that there is quite a lot more to do. I should not think that there is time to draft anything for Third Reading—this has all been done in a great rush anyway—but we may have to return to the matter on another occasion. I thank those who have taken part in the debate and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 199 to 201 not moved.]

Baroness Scotland of Asthal moved Amendment No. 201A: After Clause 128, insert the following new clause—

"INCREASE IN SENTENCE FOR OFFENCE AGGRAVATED BY REFERENCE TO DISABILITY OR SEXUAL ORIENTATION

1. (1) This section applies where the court is considering the seriousness of an offence committed in any of the circumstances mentioned in subsection (2).
2. (2) Those circumstances are—
1. (a) that, at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—
1. (i) the sexual orientation (or presumed sexual orientation) of the victim, or
2. (ii) a disability (or presumed disability) of the victim, or
2. (b) that the offence is motivated (wholly or partly)—
1. (i) by hostility towards persons who are of a particular sexual orientation, or
2. (ii) by hostility towards persons who have a disability or a particular disability.
3. (3) The court—
1. (a) must treat the fact that the offence was committed in any of those circumstances as an aggravating factor, and
2. (b) must state in open court that the offence was committed in such circumstances.
4. (4) It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) whether or not the offender's hostility is also based, to any extent, on any other factor not mentioned in that paragraph.
5. (5) In this section "disability" means any physical or mental impairment."

On Question, amendment agreed to.

[Amendment No. 201B not moved.]

Clause 136 [General limit on magistrates' court's power to impose imprisonment]:

4.45 p.m.

Lord Dholakia moved Amendment No. 202: Page 82, line 21, at end insert— (8) This section shall not come into effect before the national roll-out of the "custody plus order" under sections 163 and 164.

The noble Lord said: Amendments Nos. 202 and 203 are in my name and that of my noble friend Lord Thomas of Gresford. We had some considerable discussion on these amendments at Committee stage, but we are still concerned about the implications of Clauses 136 and 137, which deal with consecutive terms of imprisonment.

Clause 136 will increase the general sentence limit to months for any one offence. Clause 137 will increase the limit for consecutive terms of imprisonment to 65 weeks, when sentences for more than one offence are to run consecutively. That will apply to both summary and either-way offences. In effect, the new "custody plus order" will replace all short-term prison sentences of less that 12 months, with the exception of intermittent custody in Clause 163. Under custody plus, there are strict limits for the custodial period, which must not be less than two weeks and not more than 13 weeks.

We would presume, as does the Home Affairs Select Committee, that when custody plus is in force, a magistrates' court will not be able to impose a sentence which has a custodial period of more than 13 weeks.

There is a risk that Clauses 136 and 137, which collectively extend the sentencing jurisdiction of magistrates' courts, if not specifically linked to the availability of "custody plus" regimes, will sharply increase the severity of custodial sentences passed in magistrates' courts. It will also reduce the use of community sentences previously considered not so serious as to demand a custodial sentence.

Although not a significant factor in increasing the prison population, increases in the use of short custodial sentences, mainly at the expense of community sentences, over the past 10 years, have been very large. That is a trend that the Bill should properly be seeking to reverse. The amendments are designed simply to help reduce the risk that the trend will be accelerated. Amendments Nos. 202 and 203 will ensure that the limit on magistrates' courts' forces will not come into effect before the national roll-out of the "custody plus order" under Sections 163 and 164.I beg to move.

Baroness Anelay of St Johns

My Lords, I support this amendment. I must admit that I am a little disappointed to see that the noble Viscount, Lord Colville of Culross, is no longer in his place. When summing up his amendment, he chided me a little by saying that it was difficult to know which way we voted on these Benches. I have to say—and I will ensure that I put today's Hansard in front of him as I regard him very highly as a colleague from different Benches—that anyone who has read my Second Reading speech or any of my speeches in Committee will see that I have not resiled one iota from any pledge or commitment that I have given throughout our discussions on the Bill, nor will I do so in future.

The Minister will not be surprised at my support for this amendment, although in being consistent with what I have said before, my reasons for supporting the noble Lord, Lord Dholakia, are rather different from those that he adduced in his own defence on this amendment. When we debated issues of sentencing in Committee, my noble friend Lord Hunt made it clear—at cols. 1042 to 1045 of the Official Report of 15th October 2003—that we are very concerned that the Government have launched into the proposals on sentencing without ensuring that adequate resources are allocated for an orderly and swift roll-out of these important provisions.

So much of this part on sentencing from the Government is a matter of smoke and mirrors. They are trying to give to the newspapers—I shall not name any in particular—the headline, "Look what tough guys we are in increasing overall maximum sentences and trying to deal seriously with serious crimes". On the other hand, what they are really doing by so many of the provisions in this part is to reduce the time that people spend in prison. There may be very good reasons for doing that, and the Government have brought forward some innovative proposals which we have welcomed for custody plus, the subject of Amendment No. 202. The difficulty is that we will have a system in place before we know what it will cost and when it will be rolled out.

So, for all the reasons that my noble friend Lord Hunt adduced in Committee—it would be wrong for me to reproduce all of them today—we think that it is right for the noble Lord, Lord Dholakia, to table this amendment and to be concerned about this section before there is a national roll-out. I therefore support the noble Lord.

Baroness Scotland of Asthal

My Lords, I say to both the noble Baroness and the noble Lord that I understand the reasons why they have retabled Amendments Nos. 202 and 203. They seek to ensure that the proposed increase in magistrates' sentencing powers will not be implemented in advance of the new sentence of custody plus, which I know has for some time been an issue of concern to noble Lords. However, as I said in Committee, due to the fact that sentencing reforms will be introduced in phases over several years, both to allow the system to absorb the measures gradually without too much disruption and to enable the correctional services to reach the capacity necessary to deliver the reforms effectively, it seems likely that the increase in magistrates' sentencing powers may—I cannot put it any higher than that— take place in advance of the implementation of sentences of custody plus. That is because we want to accrue the anticipated benefits to be derived from the changes to allocation procedure as soon as possible and for magistrates' courts to retain more cases for trial.

We do not believe that the changes to magistrates' sentencing powers will lead to an increase in the prison population as there is no evidence to show that magistrates sentence more severely as compared to the Crown Court. Like all courts under the new framework, magistrates will be bound by a set of principles which stipulate that custody must only be imposed when the offence is so serious as to merit it, and then only for the shortest time commensurate with the seriousness of the offence. They will of course be guided in their application of these principles by sentencing guidelines to be issued by the new council.

The Sentencing Guidelines Council will be able to consider the position on a continuing basis and issue guidelines as appropriate.

Many of the provisions, such as those concerning the conditions attaching to cautions and the Crown Prosecution Service being able to charge, will greatly improve the efficiency of the system. We hope that they will also enable us more effectively to address the needs of victims and witnesses and, equally important, the needs of defendants, enabling them to be successfully rehabilitated so that they do not continue to be a nuisance, to put it at its lowest, to the communities in which they live.

Lord Dholakia

My Lords, I am grateful to the Minister for the explanation that she has offered. Only yesterday we discussed the need for consistency in sentencing. We are not objecting to the principle of the Government's proposals. We are simply asking them please not to bring this section into force before the national roll-out of the custody plus order. Obviously the Government have some difficulty here. I do not believe that the probation service is currently equipped to deal with matters such as release on licence and supervision. There is a danger that it will not be possible to apply the provisions across the country with the necessary consistency. It is right and proper to say that the section should be implemented only when custody plus is rolled out nationally. In the light of our differences on this particular matter, I should certainly like to test the opinion of the House.

4.56 p.m.

On Question, Whether the said amendment (No. 202) shall be agreed to?

Their Lordships divided: Contents, 129; Not-Contents, 120.

Division No.1
CONTENTS
Addington, L.	Falkland, V.
Anelay of St Johns, B.	Ferrers, E.
Astor of Hever, L.	Flather, B.
Attlee, E.	Fookes, B.
Avebury, L.	Fowler, L.
Biffen, L.	Freeman, L.
Blatch, B.	Freyberg, L.
Bradshaw, L.	Glentoran, L.
Brooke of Sutton Mandeville, L.	Goschen, V.
Brougham and Vaux, L.	Greenway, L.
Byford, B.	Hamwee, B.
Campbell of Alloway, L.	Hanham, B.
Carlisle of Bucklow, L.	Harris of Richmond, B.
Carnegy of Lour, B.	Hayhoe, L.
Clement-Jones, L.	Holme of Cheltenham, L.
Cope of Berkeley, L.	Hooper, B.
Cox, B.	Howarth of Breckland, B.
Crickhowell, L.	Howe, E.
Dahrendorf, L.	Howe of Aberavon, L.
Denham, L.	Howe of Idlicote, B.
Dholakia, L.	Howell of Guildford, L.
Dixon-Smith, L.	Hurd of Westwell, L.
Elton, L.	Inglewood, L.

Jenkin of Roding, L.	Reay, L.
Kimball, L.	Redesdale, L.
King of Bridgwater, L.	Rees, L.
Kingsland, L.	Renton of Mount Harry, L.
Knight of Collingtree, B.	Rodgers of Quarry Bank, L.
Laird, L.	Roper, L.
Lang of Monkton, L.	Rotherwick, L.
Lester of Herne Hill, L.	Russell, E.
Lindsay, E.	Russell-Johnston, L.
Linklater of Butterstone, B.	Ryder of Wensum, L.
Listowel, E.	Sandberg, L.
Liverpool, E.	Scott of Needham Market, B.
Livsey of Talgarth, L.	Seccombe, B.
Lucas, L.	Selsdon, L.
Luke, L.	Sharman, L.
MacGregor of Pulham Market,	Sharp of Guildford, B.
L.	Sharpies, B.
Mackay of Clashfem, L.	Shaw of Northstead, L.
Mackie of Benshie,L.	Shutt of Greetland, L.
Maclennan of Rogart, L.	Skehnersdale, L. [Teller]
McNally, L.	Smith of Clifton, L.
Maddock, B.	Steel of Aikwood, L.
Mar and Kellie, E.	Stem, B.
Marlesford, L.	Stoddart of Swindon, L.
Masham of Ilton, B.	Strathclyde, L.
Mayhew of Twysden, L.	Swinfen, L.
Miller of Chilthorne Domer, B.	Taverne, L.
Miller of Hendon, B.	Thomas of Gresford, L.
Monro of Langholm, L.	Thomas of Gwydir, L.
Montrose, D.	Thomas of Walliswood, B.
Mowbray and Stourton, L.	Thomson of Monifieth, L.
Moynihan, L.	Tope, L.
Noakes, B.	Tordoff, L.
Northover, B.	Tugendhat, L.
Norton of Louth, L.	Ullswater, V.
O'Cathain, B.	Waddington, L.
Onslow, E.	Wade of Chorlton, L.
Oxford, Bp.	Wakeham, L.
Palmer, L.	Walker of Worcester, L.
Parkinson, L.	Walmsley, B. [Teller]
Pearson of Rannoch, L.	Weatherill, L.
Phillips of Sudbury, L.	Wedderburn of Charlton, L.

NOT-CONTENTS
Acton, L.	Donoughue, L.
Ahmed, L.	Dormand of Easington, L.
Amos, B. (Lord President)	Dubs, L.
Andrews, B.	Evans of Parkside, L.
Archer of Sandwell, L.	Evans of Temple Guiting, L.
Ashton of Upholland, B.	Falconer of Thoroton, L. (Lord
Bach, L.	Chancellor)
Barnett, L.	Falkender, B.
Bassam of Brighton, L.	Farrington of Ribbleton, B.
Bernstein of Craigweil, L.	Faulkner of Worcester, L.
Blackstone, B.	Filkin, L.
Boothroyd, B.	Gale, B.
Borrie, L.	Gavron, L.
Brennan, L.	Goldsmith, L.
Brett, L.	Goudie,B.
Brooke of Alverthorpe, L.	Gould of Potternewton, B.
Brookman, L.	Graham of Edmonton, L.
Brooks of Tremorfa, L.	Grantchester, L.
Burlison, L.	Gregson, L.
Carter, L.	Grenfell,L.
Christopher, L.	Grocott, L. [Teller]
Clark of Windermere, L.	Hannay of Chiswick, L.
Clarke of Hampstead, L.	Harrison, L.
Clinton-Davis, L.	Haskel, L.
Corbett of Castle Vale, L.	Hayman, B.
Craig of Radley, L.	Hogg of Cumbernauld, L.
Crawley, B.	Hollis of Heigham, B.
David, B.	Howells of St. Davids, B.
Davies of Oldham, L. [Teller]	Howie of Troon, L.
Desai, L.	Hoyle, L.
Dixon, L.	Hughes of Woodside, L.

Hunt of Kings Heath, L.	Prys-Davies, L.
Irvine of Lairg, L.	Radice, L.
Jones, L.	Randall of St. Budeaux, L.
Jordan, L.	Rea, L.
King of West Bromwich, L.	Rendell of Babergh, B.
Kirkhill, L.	Rooker, L.
Lea of Crondall, L.	Sawyer, L.
Lipsey, L.	Scotland of Asthal, B.
Lockwood, B.	Sewel, L.
Lofthouse of Pontefract, L.	Simon, V.
Macdonald of Tradeston, L.	Smith of Leigh, L
McIntosh of Haringey, L.	Stone of Blackheath, L.
McIntosh of Hudnall,B.	Strange, B.
MacKenzie of Culkein, L.	Symons of Vernham Dean, B.
Mackenzie of Framwellgate, L.	Taylor of Blackburn, L.
Mallalieu, B.	Temple-Morris, L.
Marsh, L.	Tenby, V.
Mason of Barnsley, L.	Thornton, B.
Massey of Darwen, B.	Tomlinson, L.
Merlyn-Rees, L.	Turnberg, L.
Mitchell, L.	Turner of Camden, B.
Morris of Aberavon, L.	Walpole, L.
	Warner, L.
Morris of Manchester, L.	Warwick of Undercliffe, B.
Nicol, B.	Whitaker, B.
Parekh, L.	Whitty, L.
Paul, L.	Wilkins, B.
Pendry, L.	Williams of Elvel, L.
Pitkeathley, B.	Williamson of Horton, L.
Plant of Highfield, L.	Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.

5.8 p.m.

Clause 137 [Consecutive terms of imprisonment]:

Lord Dholakia moved Amendment No. 203: Page 82, line 28, at end insert— (5) This section shall not come into effect before the national roll-out of the "custody plus order" under sections 163 and 164.

On Question, amendment agreed to.

Clause 138 [Pre-sentence reports and other requirements]:

Baroness Scotland of Asthal moved Amendment No. 203A: Page 83, line 12, leave out from "18" to first "the" in line 14.

The noble Baroness said: My Lords, Amendments Nos. 203A and 204 were tabled as a result of issues that arose in Committee. The noble Lord, Lord Dholakia, and the noble Baroness, Lady Walmsley, rightly pointed out that for cases where a community sentence or custody is being considered the court needs to see pre-sentence reports where the offence is summary or either way but not where it is indictable. We agreed that the issue needed further consideration and that we would return to it on Report. On that assurance the amendment was withdrawn.

The current provisions detailing when the courts are required to request and consider a pre-sentence report are contained in Sections 36 and 81 of the Powers of Criminal Courts (Sentencing) Act 2000. Those in turn are a consolidation of provisions in the Criminal Justice Act 1991.

We believe that the original assumption was that the more senior courts—the Crown Courts—would naturally ask for pre-sentence reports, and that legislation focused on other cases because that was where practice needed to change. Having consulted the Department for Constitutional Affairs, the Youth Justice Board and the Crown Prosecution Service, we think it more logical to have the same statutory requirement for what are by definition the most serious juvenile cases. In practice most of those cases, whether in the Crown Court or the youth court, are already subject to pre-sentence report.

Nevertheless, we want to avoid any situation in which a pre-sentencing report could be denied to a young person facing the more serious indictable offences. Arguably, it is those cases that most need the input of a pre-sentence report with an offence analysis, an offender assessment, assessment of risk to the community and details of available options for sentence. In addition, the legislation allows courts to use a previous pre-sentence report where one exists, which gives some reasonable flexibility in situations where there are practical difficulties in obtaining a report or where a recent report is available and the youth offending team can confirm that the information is still accurate.

Given those considerations we propose that, where a juvenile is charged with an indictable-only offence and faces a custodial or community order, the court should be required to request and consider a pre-sentence report. Amendment No. 204, tabled by the noble Lord, Lord Dholakia, and the noble Baroness, Lady Walmsley, proposes that an Appeal Court should be required to request and consider a pre-sentence report in indictable-only juvenile cases if the lower court has not done so. I have added my name to that amendment and am very happy to accept it. On this occasion, I hope that I will in short measure get noble Lords' assent. I beg to move.

On Question, amendment agreed to.

Baroness Walmsley moved Amendment No. 204: Page 83, line 33, leave out from "18" to first "the" in line 35.

The noble Baroness said: My Lords, we are most grateful to the Minister for accepting our amendment, and for her related amendment that has just been agreed to. This is an example of the Government having listened, and it is a tribute to the eloquence and clarity with which my noble friend Lord Dholakia put our concerns in Committee. I pay tribute to him for that. I beg to move.

On Question, amendment agreed to.

Clause 139 [Additional requirements in case of mentally disordered offender]:

Baroness Anelay of St Johns moved Amendment No. 205: Page 83, line 42, leave out "Subject to subsection (2),

The noble Baroness said: My Lords, in moving the amendment I shall speak also to Amendments Nos. 206, 207 and 208. All the amendments stand in my name and that of my noble friend Lord Kingsland.

The amendments return to an issue debated in Committee on 8th October, as reported in col. 300 of Hansard. Clause 139 deals with the requirement to obtain a pre-sentence medical report before passing a custodial sentence in cases where the offender is, or appears to be, mentally disordered. The combined effect of subsections (1) and (2) is that the court is required to obtain such a report unless it, is of the opinion that it is unnecessary".

In Committee, I pointed out that it would be difficult to think of circumstances in which the court ought not to consider a medical report before passing a custodial sentence on such a person. In that, I received support from around the Committee.

The noble Baroness, Lady Scotland, resisted my amendment by saying that the court might already have a medical report before it, perhaps because it had already remanded the offender to hospital for treatment under Section 36 of the Mental Health Act 1983. Her view was that in such a case, it would be a waste of time and resources of the court and of the medical practitioner to produce and consider a further report which would add nothing to the information before the court… In those circumstances, it would be open to the court to say, 'We don't need to order another report because we already have available to us an appropriate report'".—[Official Report, 8/10/03; col. 302.]

As was pointed out by the noble Lord, Lord Carlile of Berriew, that narrow exception may be what the Government intend to address in subsection (2), but the Bill grants a much broader power to the courts to sentence mentally disordered offenders to custody without a medical report if the court's view is that such a report is "unnecessary". That could be for any number of reasons and not just the reason given by the Minister in Committee. The noble Lord, Lord Carlile of Berriew, was particularly concerned about a medical report not being obtained at all due to constraints on resources, a concern that I echoed then and do again today.

My amendments should of course be read together, as they are a package. They address the concerns expressed from this side of the Committee and the point made by the Government. The combined effect would be to place, under subsection (1), an absolute requirement on the court to consider a medical report before passing a custodial sentence on a mentally disordered offender. Subsection (2) would be altered to state that a medical report would have to be obtained by the court in order to fulfil the requirement in subsection (1) unless the court already had access to such a report. I hope that that meets the point made by the noble Baroness in Committee.

Amendment No. 208 addresses a slightly different issue. It would remove subsection (4). I remain concerned that the subsection appears to be declaring that if the sentencing court has not taken the right action and has failed to obtain a medical report, the mentally disordered offender is in the position of being stuck with the sentence and can change that only by being put to the trouble and effort of going to an appeal themselves. As I said in Committee, that seems to be doing things the wrong way round.

I have returned to the issues not simply because I feel that there has been a drafting error, but because the matters concern me. The commitments and duties on the court need to be clarified in this respect. I beg to move.

5.15 p.m.

Lord Thomas of Gresford

My Lords, my name has been added to the amendment. I fully support everything said by the noble Baroness, Lady Anelay. Any practical problem may be cured by the omission of "obtain and", because in so many cases where there is a suggestion of mental disorder it is the defence who has obtained a report, and it would not be necessary for the court to go and get one providing that the defence was prepared to release it to the sentencing judge, as is almost invariably the case. That answers some of the practical problems that may have been in the minds of those who originally drafted the clause. It would be much improved by the amendments.

Lord Mackay of Clashfern

My Lords, I strongly support the amendment. It is absolutely vital that, where there is any suspicion of mental disease or abnormality, the court should be apprised of that with a detailed medical report.

Baroness Scotland of Asthal

My Lords, I am almost overwhelmed by the strength of the fact that the noble Baroness has the noble and learned Lord, Lord Mackay of Clashfern, to support her. I am timorous about disagreeing. Loath as I am to do so, I will, and I shall explain why.

The effect of the amendments would be to remove the discretion of the courts to decide whether it was necessary to consider a medical report on an offender who appeared to be mentally disordered before passing a custodial sentence. I understand the importance of that. The amendments are significantly better than those brought forward on the previous occasion, if I may respectfully say so, with humility. However, the court will normally consider a medical report in those circumstances, to inform its decision on whether a disposal under the Mental Health Act 1983 would be appropriate. Clause 139 requires the court to consider so doing.

The medical report will not always be necessary to reach such decisions, however. An example is where a sentence under the dangerous offenders provisions is necessary, so one knows that custody is regrettably likely to be the result. In circumstances where, for whatever reason, it was clear to the court that it would not make a Mental Health Act disposal, then to require it to consider a medical report would be wasteful of both time and resources in a way that would benefit neither the offender nor the administration of justice.

Lord Thomas of Gresford

My Lords, does the noble Baroness not consider it important that, even where a dangerous offender order is made, those who may ultimately have to consider whether to release a person into the community should have at their disposal a report relating to the mental disorder made at the time of sentencing?

Baroness Scotland of Asthal

My Lords, I hear what the noble Lord says. He knows, too, that increasingly—we hope that it will be rolled out generally—offenders go through a risk assessment process when they reach prison so that one can better manage them through the period of imprisonment and address the needs that they may have. Therefore, it is certainly likely that, in any event, an assessment process will take place for prisoners.

We are really considering whether, in the particular circumstances of a case, the court should have a residual discretion to say, "A report is not needed on this occasion for the following reasons". The noble and learned Lord, Lord Mackay of Clashfern, will know that if the court is given no discretion, it is very difficult to legislate for every circumstance. The noble and learned Lord will know from his time as Lord Chancellor in particular how assiduous the courts have been in relation to this issue. Therefore, bearing in mind the careful approach of the judiciary, we believe that it will be important to retain a modicum of discretion for the court to do what it feels is proper.

I understand the concern that has been expressed and I understand, as I said, what the noble Lord, Lord Thomas of Gresford, said. On balance, we have come down on the side of saying that the court should have this modicum of discretion in order to ensure that things are dealt with appropriately and smoothly while also, obviously, addressing the question of the mental health of the offender. The noble Lord will know, for example, that if the court failed and/or refused to do what was proper in consideration of the defendant's needs, a matter would be raised on appeal if that were appropriate. I know that our judges would be assiduous in ensuring that such opportunities were limited.

Baroness Anelay of St Johns

My Lords, I am grateful for the support of, in particular, my noble and learned friend Lord Mackay of Clashfern and also for that of the noble Lord, Lord Thomas of Gresford, who added his name to the amendment.

If I were to press the matter to a Division, I would, by tradition, start by saying how disappointed I was with the response of the Minister. I shall not press this issue to a vote but I am still disappointed with her response. I understand precisely that the Government are seeking to leave behind what the Minister calls so delicately "a modicum of discretion". Certainly, in relation to many other parts of the Bill I argued that I wanted courts to have discretion. The only reason that I am trying to fetter that discretion here is that I believe it to be in the interests of a particular group. I feel that the onus should not be put on that group to appeal a decision which would plainly be wrong.

I would expect—as I have no doubt the Minister would—that no court would come to the decision that a report should not be current and available and used before such sentencing. My attempt was only to have that commitment from the Government placed on the record, which, in a manner, they did in Committee and on Report. I give way to the noble Baroness.

Baroness Scotland of Asthal

My Lords, I very much agree with the noble Baroness. Mentally disordered offenders represent a significant proportion of people who now, regrettably, find themselves in our prisons. Dealing with them appropriately and well is absolutely critical. Where a mentally disordered offender comes before the court, we expect the court to have the kind of evidence upon which it can make a properly informed judgment. We believe that any opportunity to exercise this discretion should be used very judiciously. It should be reserved for the exception and should by no means become the rule. I hope that that assists the noble Baroness.

Baroness Anelay of St Johns

My Lords, that was a very clear and generous response. It is as good as it gets and it is very good of the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 206 to 208 not moved]

Clause 143 [Pre-sentence drug testing]:

Baroness Walmsley moved Amendment No. 209: Page 86, line 12, leave out "14" and insert "18

The noble Baroness said: My Lords, in moving Amendment No. 209, I shall speak also to Amendments Nos. 210 and 211. The existing drug-testing powers in the criminal justice system are applicable only to anyone aged 18 and over. Under the provisions of the Bill, it is proposed that those powers should be extended to anyone aged 14 or over.

The principles behind our continued pressure on the Government on this issue are two-fold. First, we do not believe that they are rooted in evidence and we consider that they are therefore potentially counter-productive. Secondly, we believe that they confuse the distinctive status of children in law and within the criminal justice system.

Therefore, we believe that the proposed measures in relation to drug-testing powers for children should be withdrawn. Unfortunately, the Minister did not convince us in Committee that they have an explicit purpose or rationale. We believe that they are an extension of powers used with adults without any consideration of how or whether they meet the best interests of children. They infringe children's rights to liberty, privacy and protection from inhuman and degrading treatment. We believe that they risk making a child's right to necessary treatment for a drug problem conditional upon his past or future involvement with offending. That should not be the basis for the availability of such treatment. Finally, they come at a time when expertise and evidence in relation to children's drug problems and their relationships with offending are evolving. The evidence does not suggest that the Bill's proposals will be effective.

Perhaps I may say a little more about that. The evidence put forward by the Government shows certain linkages between acquisitive crime and long-term drug dependency. We agree to the validity of that link and have never disputed it in your Lordships' House. However, that body of evidence suggests that identifying and treating adult offenders who have an entrenched dependency can have a clear impact on their criminal behaviour.

However, research into the relationships between drug use and offending in the juvenile population shows that, while drug experimentation and regular use are prevalent, a long-term drug dependency is rare. Offending and drug use among the young are inter-related in far more complex ways than is the case with adults. That must raise the question why we should simply assume that an extension of powers used for adult drug-dependent offenders will be appropriate or effective for young people.

We are particularly concerned about the lack of stated purpose or intended consequence given for the extension of powers to test children for class A drugs. Any child who is charged, including those given final warnings, will already be referred to a youth offending team officer for assessment of his needs. Part of that assessment is an analysis of any substance misuse, and all YOTs have a specialist to follow up any needs or further assessments. That includes the pre-sentence report stage and ensuring appropriate support in the community following release from custody. That raises the question why the powers are thought to be necessary before research has proved that they are in fact necessary.

We are at least gratified that, as the noble Baroness told us in Committee, this measure will be piloted and monitored and that the powers of the Secretary of State to amend the age upward or downward will be subject to affirmative instrument and, therefore, subject to some kind of parliamentary scrutiny. However, we ask the Government to reconsider these issues in the absence of the appropriate research to prove their necessity. I beg to move.

5.30 p.m.

Baroness Scotland of Asthal

My Lords, Clause 143 provides for the court, when considering passing a community sentence on a person aged 14 or over who has been convicted of an offence, to make an order for that person to be tested for specified class A drugs— heroin, cocaine and crack. We have gone through these matters before. I absolutely understand why the noble Baroness is concerned about them. I believe that she understands how the Government put the matter and why we think it is necessary.

Amendment No. 209 would raise the minimum age for drug testing from 14 to 18. The effect of that will be to negate the purpose of the clause as pre-sentence drug testing is already available for adults aged 18 and over—under Section 36A of the Powers of Criminal Courts (Sentencing) Act 2000—where that is being implemented as part of the wider drug testing programme for adults. We are considering knocking out the clause in its entirety and expunging it.

The purpose of the clause is to lower the minimum age from 18 to 14, in line with other drug testing provisions in the Bill, to help to ensure that younger offenders in the age range 14 to 17, who may be misusing specified class A drugs, are also identified. Action can then be taken to follow this up and appropriate intervention can be made to address the needs of the offender when the court is passing sentence. We believe that it is absolutely critical that we address the problems—they are real problems—as quickly and as early as we can.

I know that the noble Baroness has previously acknowledged some of this. We know that drug use and offending and other anti-social behaviour among young people are very much linked. Moreover we know that there is a correlation between early use of illegal drugs and more frequent and problematic drug use later on.

Drug testing for young people aged 14 to 17 years is part of a package of interventions that stretches across the drugs strategy provisions for young people. These provisions aim to ensure that drug misuse can be identified in a number of settings, including within the criminal justice system, so that young people who are misusing drugs can be encouraged to address their misuse and access appropriate treatment and other programmes of help. So we want to get them out of the behaviour. We do not simply want to ignore the fact that they are in a distressing situation and are not coping very well.

The purpose of pre-sentence drug testing, as with testing on charge, is to have a screening tool. We know that young people will often not acknowledge that they have a drug misuse problem—particularly one involving heroin, crack and cocaine—or that their drug misuse is causing problems to themselves, to their family and to the community. The tragedy is that some young people are very skilled in hiding their misuse from all of those who care most for and about them.

Pre-sentence testing can provide a signal to professionals working with young offenders that the offender is misusing specified class A drugs. The drug test result can then be used, with other information, to help the court form an opinion as to the most suitable requirements for the offender as part of his or her community sentence; for example, whether it would be appropriate to include any relevant drug treatment and testing requirement.

It has been argued that these provisions, with their element of compulsion, are unnecessary, as young offenders who are using serious drugs will be picked up by the Youth Offending Team's ASSET assessment which includes an assessment of substance misuse. However, we believe that these provisions are necessary. Pre-sentence testing is intended to be used in conjunction with the ASSET assessment—not in substitution of it—and initiatives such as arrest referral. It provides an opportunity, which might not otherwise arise, for the court to obtain an indication as to the offender's recent use of any specified class A drug.

It could be used, for example, where the offender has not previously been tested, or has produced a negative result at charge but the court has reason to believe that the offender is misusing specified class A drugs; or where a young person has not co-operated with the ASSET assessment or any referral to a drugs worker in the Youth Offending Team and the supervising officer believes that the young person has a specified class A drugs problem.

It could also be used where the offender is disputing a test or claiming to be no longer using specified class A drugs having tested positive on charge. The results of the test will help to inform the sentencing decision of the court and ensure that for those young offenders who do have a specified class A drugs misuse problem, that that misuse can be taken into consideration and appropriate treatment and intervention can be provided.

We want to help young people with such drug problems, which if left unchecked, could escalate and lead to an ongoing cycle of drug misuse and offending, and all the associated problems that brings with it. We believe, therefore, that this provision, which allows the court to exercise its discretion to require a drug test which will help to identify whether the offender has used a specified class A drug, is in the best interests of young offenders. It will help to ensure that if they are using specified class A drugs, that misuse can be addressed alongside their offending, with the aim of enabling them to go on to lead a healthy and crime-free lifestyle. It is also in the interests of the victims of their offending and of society.

The noble Baroness will have heard, as I have when visiting programmes for such young people, terrible stories of the life that they led when under the influence of these pernicious drugs. Then one sees the wonderful person who rises out of that situation when they have received the help and support that they need to leave behind the offending behaviour, the contribution that they go on to make to their communities and how they help others to drag themselves out of the same mire in which they were steeped. That is very important, and we are very committed to taking the opportunity to do that.

We therefore propose that Amendment No. 209 should be resisted. We would invite the noble Baroness not to press it. The clause provides for the presence, of an "appropriate adult" during the testing process for those offenders who are under the age of 17. Amendments Nos. 210 and 211 in the names of the noble Lord, Lord Dholakia, and the noble Baroness, Lady Walmsley, would raise the age at which a person must not be tested for specified class A drugs except in the presence of an appropriate adult, from those under the age of 17 to those under the age of 18.

We acknowledge the views expressed by noble Lords that the clause should provide for all persons under the age of 18 to be afforded the same safeguard involving an appropriate adult. Similar amendments were debated on Report in respect of Clause 5, relating to drug testing persons in police detention. As I explained then, we believe that consistency and clarity in respect of the age level for an appropriate adult are important, but we believe that we need to look holistically at the issue of how juveniles are treated under PACE and across the criminal justice system, rather than seek to change the position in a piecemeal fashion. Earlier today we were accused of doing things in a piecemeal fashion. We have taken that to heart and we do not want to do this piecemeal because it affects so many young people.

We propose to introduce the provisions for drug testing younger offenders in limited areas initially so that they can be fully evaluated and so that information about good practice can be shared. That will include issues relating to the appropriate adult requirement. Although the legislation, as drafted, does not specifically provide for the presence of an appropriate adult for those aged between 17 and 18, that is not precluded. There is nothing to prevent a 17 year-old requesting that a parent or an appropriate adult be present during the testing process.

As I sought to assure noble Lords earlier on Report, we shall certainly heed the views expressed when considering whether more consistency needs to be introduced into the age levels applying to juveniles across the criminal justice system, as identified by the PACE review in 2002. The issues will not go away; we shall return to them and we shall have an opportunity to deal with them holistically. With contributions from all noble Lords whom I know will contribute to that debate, I hope that we shall get it right. Therefore I invite the noble Baroness not to press any of these amendments, although I understand why she has tabled them.

Baroness Walmsley

My Lords, I thank the Minister for her response. I agree that it is critical that we address these problems. I accept that it is the Government's wish to help young people with them. But, the Government often ask noble Lords to take into account care and practice. I ask the noble Baroness: why is the Youth Offending Teams' current practice of making these assessments not being taken into account? Why is it still seen to be necessary to have this practice in legislation, because it is being done anyway as a matter of routine?

I shall not be dividing the House on the amendments, but I urge the Government to roll out these measures carefully and to monitor them rigorously. We shall look carefully at that monitoring. After young people have been subjected to this kind of testing, they should be followed up for a sufficient length of time. We will also look very carefully at any attempt by the Secretary of State to change the age— particularly downwards—for mandatory drug testing.

On Amendments Nos. 110 and 111,I agree with the noble Baroness that we need consistency and clarity about how young people are treated under the law. But we should like that to be consistent with the UN Convention on the Rights of the Child in preference to the provisions of PACE. However, we will, as the noble Baroness says, return to the matter. With those words, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 209A: Page 86, line 13, after "sentence" insert "or a suspended sentence

The noble Lord said: My Lords, Amendments Nos. 209A, 218B, 218C, 218CR and 220D make a number of minor drafting improvements to the Bill. Amendment No. 209A corrects an omission and enables pre-sentence drug testing to be applied where the court is considering passing a suspended sentence or a community sentence. A suspended sentence will of course be available only for adults, but the choice of requirements that can be applied to it are exactly the same as those that are available for a community sentence in the Bill.

I hope that with that simple explanation your Lordships will find these amendments acceptable. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 210 and 211 not moved. ]

5.45 p.m.

Clause 149 [The Sentencing Guidelines Council]:

Baroness Anelay of St Johns moved Amendment No. 212: Page 89, line 32, leave out "seven" and insert "ten

The noble Baroness said: My Lords, the amendment would increase the number from seven to 10 of judicial members of the Sentencing Guidelines Council. I propose first to speak to the narrow issue, in a sense, of my amendment before referring to the Minister's amendment and how I hope that it might interrelate with mine.

The most important question on the Sentencing Guidelines Council is to determine how the balance of membership should be comprised and how it should be balanced between the twin aims of ensuring that the sentencing guidelines retain a substantial input from the judiciary and the requirement that they should command public confidence.

In Committee on 8th October, I put forward my own answer. "My own" I have to say reflected all the work that went on behind the scenes by my honourable friends in another place. It was supported at Second Reading in this House by the noble and learned Lord the Lord Chief Justice; namely, that the council should have only judicial members, but that its decisions on the guidelines should be subject to scrutiny by Parliament. That proposal was part of a very broad package of proposals that perhaps were—in a phrase of the Minister's—"carefully crafted" to achieve judicial discretion as far as possible while retaining some modicum of parliamentary scrutiny.

That, as I thought, "carefully crafted" proposal was blown totally and utterly out of the water by the disapproval of noble Lords and in particular that of the noble and learned Lord, Lord Ackner, who is in his place, and the noble Viscount, Lord Bledisloe. One has to say, "Right, that battleship is sunk", and to consider what remains within the principles set out that can be brought forward, and to which one will adhere throughout the progress of the Bill.

So, I have to try to reconcile the two aims, to which I have referred and which I believe have wide support around the House, including from the Government; that these are the two issues which need to be balanced.

We are now left with the structure in the Bill. We are trying to adapt our amendments to reflect the fact that we have to deal with the Government's offer. From the point of view of the Front Bench on this side of the House, we now have a situation in which we have two models on sentencing guidelines for murder that will be debated in the rest of this Bill. One model is that proposed by the Government and the other is that proposed by the noble and learned Lord, Lord Ackner.

The Minister's model tries to achieve the same kind of objectives that we want. They have gone around the matter the wrong way in some parts, which is why we are trying to amend it. In particular, we think it goes too far in encroaching on judicial discretion. We shall come to the detail of some of that later. I will not be able to attack the Government on that because my defence has been removed from me by other noble Lords in this House, so I suspect that the noble Baroness will sit very contentedly and watch the Bill go through virtually unamended from this point on.

I turn to the model proposed by the noble and learned Lord, Lord Ackner, which of course is very attractive and beguiling and has the support, I know, of very principled Members from my own Benches; that is, that judicial discretion overrides all. The Front Bench in both Houses has always—in government and in opposition—supported the Government throughout on the proposition that those who are sentenced for the most serious forms of murder—if one can be more serious than another—those that used to carry the death penalty, should indeed sometimes be kept in prison out of society for life. In the past, the Home Secretary had the right to take part in determining that period. That was of course blown out of the water from the Government's point of view by the Anderson case. They then brought forward this model.

I needed to get that explanation on to the record today because it will give notice to noble Lords that I have been completely—the only polite word I can think of—"stuck" in what I can honestly and honourably do on the Bill from hereon. The amendment provides one of the honourable solutions that I can still find as a way forward; that is, that we have always supported the Sentencing Guidelines Council, but if we are going to go down the line the Government say, the majority of the people on that council must have judicial experience. My amendment—I picked the number 10 out of the air— was simply to enable me to make that point to the Minister and to invite her to give an assurance to the House that the majority of the voting members—it is important that they should be voting—on the Sentencing Guidelines Council must be those who have or have had judicial experience.

Then, to my surprise and pleasure I noted the amendment of the noble Baroness, which is in the group. I read the accompanying letter, which was written on 29th October, but, sadly because of recent postal problems—despite the best efforts I am sure at being sent on 29th—reached me only earlier this morning. However, the Home Office team was very kind in ensuring that I had an e-mail copy of it yesterday, so I did have advance notice.

The Minister is doing what I consider to be the right thing for different reasons—not wrong reasons but different reasons. Her explanation is that her amendment removes a civil servant from the membership of the council while providing for him or her to continue to have an observer role on the council. That is the core to the changes she will make. I shall not go further because the noble Baroness will put those reasons on the record. So, although that may be her stated reason, I hope that she will go on to say that it has the added benefit of making it even more certain that the majority of the people voting on SGC will be judicial. I beg to move.

Lord Ackner

My Lords, as I submitted previously to your Lordships' House, the sentencing guidelines situation has been grossly over-complicated. For the past two decades, sentencing guidelines have been provided by the Court of Appeal, cases have been collected and the opportunity taken to announce the principle. During the past two decades, almost, I have referred on several occasions to guidelines to establish a principle. They have never been criticised, until this day, when the guidelines that the Lord Chief Justice produced on burglary were not so much misread as not read properly at all by the press. They had to be corrected. Some time ago, I had cause to have placed in the Library a collection of guideline judgments so that they could be read.

Why the change? Change has already taken place, and judges have not resisted sensible change. Two or three years ago an Act set up the Sentencing Advisory Panel, which consisted of people of varying professional experience, with a professor presiding and members including the noble Lord, Lord Chan, and magistrates. The panel went to enormous trouble, because the legislation provided that sentencing guidelines were not to be enunciated without first consulting it, or, that if it produced sentencing guideline proposals, they had to be properly taken into consideration and, if not followed, reasons provided.

As a result, the panel produced.10 guideline proposals over three years. It invited the public to represent in various ways their views and then produced a report. On every occasion, the Court of Appeal has accepted what the panel has suggested. The latest guidelines produced, which related to sentencing for murder, were particularly interesting, but I shall reserve any detailed comment on them until Clause 19.

We have moved on. The system has become more transparent and is open to public criticism and views. So why change it? What is the point of having a Sentencing Guidelines Council consisting partly of sentencers and partly of the public, when the public are already represented on the panel? If you want a policeman or a civil servant—that is one of the proposals in the sentencing guidelines—you can put him or her on the panel. When the panel was asked its view on the proposal, it demurred and said, "This is a duplication of our effort. What is the point of having a Sentencing Guidelines Council not composed solely of sentencers but with members who should be on our panel? The duplication may not be satisfactory and may not do the work as well as we do it, so what on earth is the point?".

The Lord Chief Justice very liberally accepted that the Court of Appeal should no longer issue guidelines and that they should be issued by the Sentencing Guidelines Council after proper consultation with the panel. But he said that sentencing was a judicial function and that therefore sentencers should sit on the council; they should not be diluted. It is terribly important that the guidelines are respected and that people have confidence in them. However, why should people have confidence in such a mixed organisation, to which there could be significant political input?

That is why I propose that we accept the unnecessary interference in what has gone on in the past, with the panel's position well endorsed by legislation, but purely on the basis that the Sentencing Guidelines Council consists of sentencers, including one or more magistrates. It should not include—I do not say this disrespectfully—odds and ends but laymen or laywomen. Accordingly, I have tabled an amendment to remove references to anybody other than judicial members.

It should not be overlooked that our Home Secretary, such is his ambition, will seek power to add to or detract from the membership of the Sentencing Guidelines Council. That merely lends support to the useful phrase coined by the noble Lord, Lord Windlesham, that what is behind these proposals is sentencing by ministerial decree. I would have none of it.

Lord Renton

My Lords, the noble and learned Lord, Lord Ackner, has moved amendments to modify the powers and composition of the Sentencing Guidelines Council. Having listened to him with great respect, he has made out a case for leaving out altogether the statutory proposals for a Sentencing Guidelines Council.

It is a very strange situation that the Lord Chief Justice presides over the Court of Appeal, which hears appeals on sentencing in criminal cases, but will also be a fundamental member of the Sentencing Guidelines Council. Somehow he will have to persuade the Sentencing Guidelines Council and the Court of Appeal to reach the same sort of decisions. Presumably the Sentencing Guidelines Council is being created by statute to guide the Court of Appeal. That is a ridiculous situation, and I hope that at Third Reading we can leave out those clauses altogether.

6 p.m.

Lord Borrie

My Lords, I shall try to confine myself to the amendments, which do not include the broader ideas discussed by the noble Lord, Lord Renton. I do not know the precise balance that there should be between judicial members and non-judicial members. However, there are amendments in front of us from the noble Baroness, Lady Anelay, and the Minister, who has not yet spoken. The amendments represent changes since Committee.

I feel strongly that the council should contain some—a minority—of non-judicial members. However, as the clause provides, that minority should be people with experience of various aspects of criminal justice—including the police, the prosecution, the defence and those involved in the welfare of victims. My noble friend the Minister who has not yet spoken on this matter today has none the less said that two of the five non-judicial members already provided for should be the Director of Public Prosecutions and the Commissioner of Correctional Services. Some of us may agree that both of those people are appropriate non-judicial members.

We have heard today and in Committee the views of the noble and learned Lord the Lord Chief Justice. He has given us the benefit of his more detailed opinion, which is available in the Library. The noble Baroness, Lady Anelay, said last time in Committee that the Lord Chief Justice had said that, "to carry real clout" the membership should be confined to the judiciary. However, the noble Baroness also said in Committee that, while the Lord Chief Justice speaks for the judiciary, it is most important that the Sentencing Guidelines Council should command the confidence of the general public as well as the judiciary. Why should the judiciary have good reason for lacking confidence in a body in which a minority contains people from the groups that I have described that have experience of the criminal law?

I took the opportunity in Committee of referring to the Parole Board as it has been called for some years, including 20 years ago when I happened to be a member. It has an important role in sentencing. It actually indicates the sentence that will be served by this or that individual prisoner. It has always contained a mixed membership and does not even have a majority of judges. I see great value in having a diverse range of skills in the council and I do not think, with due respect to the noble and learned Lord, Lord Ackner, that the judiciary has an exclusive monopoly on wisdom in matters of sentencing.

Lord Ackner

My Lords, I thank the noble Lord for letting me intervene, but I have never suggested that it has. Had that been the case, judges would have resisted the panel. They would have resisted having to listen to what the panel said and, if they did not agree, having to give their reasons. They would have resisted the suggestion that when they wanted to initiate guidance, they would have to consult the panel. All that the noble and learned Lord the Lord Chief Justice has said is that the Sentencing Advisory Council is performing a judicial function. It is deciding on the right sentence. To mix that up with lay views is asking for a lot of potential problems. In speeches on this Bill, there has been a clear indication that the public perception and reality with regard to sentences are often miles apart.

Lord Borrie

My Lords, I had finished the remarks that I was going to make when the noble and learned Lord intervened. I do not wish to say more because I would have to get into the debate that others quite reasonably want to get into about the role of the Sentencing Advisory Council as a whole. The noble and learned Lord, Lord Ackner, and the Lord Chief Justice have very strong views indeed on its very existence. We may then return to the controversy we had in Committee when I thought that the Minister, among many others, had taken the view that the ultimate sentence awarded in court when there is a conviction is undoubtedly in the discretion of the judge. There may be an advisory council and guidelines may be laid down in the Bill that will be an Act about minimum sentences and so forth, but the ultimate discretion is that of the judge. Neither these provisions nor any other interfere with that.

The Lord Bishop of Worcester

My Lords, I am not quite sure whether I am speaking or intervening in an intervention. However, I will speak and if I am wrong I will be stopped.

I have thought rather hard about this matter. I feel that I must support the amendment of the noble and learned Lord, Lord Ackner, as the only possible way of making the point that I wish to make, without totally agreeing with the form of argument that he adduced. I do not believe that there is anything wrong in principle with having a Sentencing Guidelines Council that draws on a wider range of expertise, provided that its function is entirely advisory. What disturbs me about the proposal that we have before us is that it bears too many marks of the sociological/political context—if I may put it that way—from which this Bill has come. It does that as soon as one inspects the composition of the non-judicial members of the proposed body.

There are many people who could bring wisdom to sentencing. For example, some people who have been imprisoned would have a great deal of wisdom to bring to what sentencing should be. I spent this morning with a group of prison chaplains in the Kent, Sussex and Surrey area. There was a huge amount of wisdom in that room about the effect that sentences actually have on people, and that wisdom is worth having. There are people who might just be included in the list, although I am not sure, who are probation officers who have spent a lifetime in this work and have a great deal to give. I can think of people who have worked for the Howard League or the Prison Reform Trust who have thought enormously hard about this matter. I can think of representatives of the Children's Society, whose wisdom and understanding have already figured so strongly in the debates that we have had on this Bill. They have enormous wisdom to give to the issue of sentencing.

I am not sure whether the best way to draw on such wisdom is to have representative figures on the Sentencing Guidelines Council, but their presence would bring wisdom at least as well as the people in the current list. However, when we look at the current list, it is difficult not to remember the comment of the Secretary of State that he wanted judges who inhabited the same real world as he inhabits. The list seems to contain people whom he regards as better representatives of that real world. I find that list alarming. I find it even more alarming that it is proposed that the DPP and the commissioner for correctional services are appropriate members of the council, when the list is not balanced by the presence of any categories of person representing a different view.

In those circumstances, how should I vote? The amendment in the name of the noble Baroness, Lady Anelay of St Johns, does not meet the case. Just increasing the number of judicial members does not balance the list of non-judicial members, if we accept that there should be such. Given the anxieties that I have about the proposal, I have no alternative other than to support the amendment tabled by the noble and learned Lord, Lord Ackner. That would put us in the position of having to rely for advice to sentencers on the more informal arrangements of public debate, articles, letters and so forth, which allow the widest range of people to bring their wisdom to bear on the matter.

Lord Ackner

My Lords, the right reverend Prelate has overlooked the existence of the sentencing panel.

Lord Bassam of Brighton

My Lords, I remind noble Lords that we are at Report stage. There should not be additional interventions, once noble Lords have sat down for the first time, having made their initial contribution.

Lord Ackner

My Lords, I appreciate that, but one is entitled to ask questions for clarification.

The right reverend Prelate said that he was limited on his approach and on mine to relying on public debate. That is factually wrong. He has overlooked the panel, which goes anywhere that it thinks appropriate, including prisons, to get the wider view of the public.

The Lord Bishop of Worcester

My Lords, I accept the noble and learned Lord's correction of what I said.

6.15 p.m.

Baroness Scotland of Asthal

My Lords, I am grateful for that. The noble and learned Lord, Lord Ackner, is right about the species—if I can put it that way—of persons referred to by the right reverend Prelate, and by that I mean the species; of expertise represented by the panel. It is very much in evidence.

I start by reassuring the noble Baroness, Lady Anelay of St Johns, that we intend to make sure that a majority of voting members of the council will be judicial. I will explain how that majority should be constructed and give our reasons for thinking that her three-to-one majority is not, perhaps, the best.

I say straight away to the noble and learned Lord, Lord Ackner, that by no means do we seek, in putting the provisions in the Bill, to criticise the guidelines that were issued by the Lord Chief Justice. Nor do we cast any aspersion on those guidelines. I agree with the noble and learned Lord that some of the comments that have been made about guidelines may not have been based on the experience of having read them. That, of course, is a matter of regret and concern to us all.

I also say to the noble and learned Lord that it is right to acknowledge that the senior judiciary has welcomed the council, even though there is concern about how the membership of the council is to be made up. The noble and learned Lord was right to highlight the fact that the judiciary has welcomed and participated in the change. That has been a good thing, and it is what one would have expected from the judiciary of this country, of whom we are justly proud.

The creation of the Sentencing Guidelines Council is a key provision. It will enable the judiciary, practitioners and Parliament to work together to improve the approach to sentencing. The Bill provides for a judicial majority on the council: the Lord Chief Justice, as chairman, with seven other judicial members drawn from each tier of court. I endorse the comments made by my noble friend Lord Borrie and am happy to give the detail of how the majority is to be made up.

There is also provision for five non-judicial members, who will together cover the whole spectrum of a criminal case from detection of the offender to completion of the sentence. That reflects the fact that sentencing does not take place in isolation. It is part of the process of dealing effectively with crime—an important part, but still a part.

Concerns have been raised regarding the possible appointment of the commissioner for correctional services as the person who would bring to the council experience of sentencing policy and the administration of sentences. We were pleased to note the welcome for that level of expertise and for the standing that that person has.

The issue here has been the role and responsibilities of a mainstream civil servant and the possible conflict between responsibility to Ministers and responsibility as a member of an independent body. We have reflected on those concerns with great care. I believe that it will be of great benefit to the council to have direct access to a person who can bring current and direct knowledge of such areas to its deliberations. However, I also see the force in the arguments regarding the possible conflict of interests. Therefore, we propose that the person bringing that experience should be an observer with a right to attend and speak at the meetings of the council, rather than a member of the council. That means that the numbers are going down, just as the noble Baroness, Lady Anelay of St Johns, would like. I see her smiling her pleasure at that.

The clause authorising the appointment of a civil servant can therefore be removed, with a safeguard to ensure that it will be possible for the Home Secretary to appoint the Director of Public Prosecutions as the person with experience of criminal prosecution. Technically, the director is a civil servant, though that does not raise the same concerns. On the previous occasion, the noble Lord, Lord Carlisle of Bucklow, expressed his surprise that anyone could even describe the DPP in such terms. That demonstrates how independent and objective that role has always been and how diligently those who serve us in that office have discharged their duties.

It is important that the council provides a good balance between judicial and non-judicial members. The council must also be a manageable size. Although I am happy to confirm to the noble Baroness that judicial members will be in the majority, we do not think that it is desirable or necessary to have, as she suggests—I understand why she plucked the figure—a judicial majority of three to one. The council will be a partnership, bringing together wide experience and authority. It is unlikely that it will ever need to vote on issues or that there will be anything other than broad consensus in the management of its affairs. Extensive consultation will precede its decisions, and the judiciary will be involved in that.

We expect the council to be active and innovative. There must be a proper balance between members, demonstrating the importance of each member's contribution to the work of the council. We recognise that there should be a judicial majority. Our proposals will provide a ratio of 2:1. But it is also important that the council benefits fully from the wider experience provided through the non-judicial members. The current proposal provides the best balance.

I turn now to the amendment proposed by the noble and learned Lord, Lord Ackner, supported forcefully and fully by the noble Lord, Lord Renton, and, for different reasons, supported by the right reverend Prelate the Bishop of Worcester. The noble and learned Lord proposes that councils should consist only of judicial members. I resist that proposal.

The Government fully recognise the particular expertise in devising guidelines that judges and magistrates have built up over many years. We agree that the judiciary has a crucial role to play in creating guidelines. That is why we have ensured that judicial members are in the majority on the council and why we have provided that the council should be responsible for making the guidelines rather than Parliament.

However, the range of legitimate interest in the level of sentencing and the approach to different offences is much wider than the judiciary. The whole of society has an interest in sentencing: criminal law is the state acting on behalf of society as a whole. The Government's proposal enables that wider interest to be brought in, but still leaves the final decision with a body of very high calibre with a judicial majority. The noble and learned Lord will know that when the Bill went to the other place for consideration, it was the Government's view that what the noble and learned Lord outlined should be the case. That was our first position.

In the other place there was good, proper, active scrutiny and debate. Many came forward; many thought that this was a lost opportunity; and many thought that we could improve and enhance the quality of the sentencing councils by broadening them. My noble friend Lord Borrie was right when he gave the example of the Parole Board, which had enriched its board by drawing together, as it did, a wider spectrum. We did what we have done throughout the Bill: we listened. When others have spoken powerfully, we have demonstrated that we are prepared not only to hear them but also to act on their good advice and seize the opportunity to introduce a provision which is the best that can be created. We do not listen only to ourselves and think that we are the font of all wisdom.

We need to remember the context in which we are discussing sentencing. One of the tragedies is that, as never before, there is real public disquiet about the criminal justice system. We know that recorded levels of confidence in the judiciary and in sentencing are low. I agree with the noble Lord that on many occasions it is because people do not understand the process. When they understand the process, they usually agree with the result. Throughout the Bill, we are trying to make that purpose clear to all. Confidence should not be reserved only to those of us who know intimately the workings of the legal system, know intimately how fair and just our judges are, and know intimately how hard they strive to do justice. It should be genuinely widely held.

Those of us who know judges and magistrates well are aware how able and committed they are. However, these are issues which must be faced. We cannot just ignore the fact that public confidence is low. We need to ensure that we build a stronger system that protects the independence of a judge or magistrate to make the right decision in the case before them. It should also provide a framework that gives confidence that the general level of sentencing accords with a good understanding of the causes of crime, the response to crime and the impact of different sentences.

Everyone appointed to the council will be of the highest calibre, highly regarded, independent minded and able to contribute effectively to the production of guidelines of the highest quality that will justifiably command the respect not only of the judiciary and of practitioners but also of the wider public and of Parliament.

The right reverend Prelate the Bishop of Worcester need have no concern that we believe that wisdom is the sole province of the judiciary. We do not believe that. He need have no concern that we do not believe that others can make a valid contribution. All those to whom he referred are brought in, listened to, worked with, consulted and relied upon on the panel. The panel has worked well. In Committee, we heard from the noble Lord, Lord Chan, who sits on that panel. He spoke of the high quality of their work and the way in which they interact with the judiciary, which is a matter for congratulation. In moving the government amendments, I invite the noble and learned Lord, Lord Ackner, and the noble Baroness, Lady Anelay, to withdraw their amendments.

Lord Renton

My Lords, before the noble Baroness sits down, perhaps she would answer the fundamental question that arises in this matter. When the Sentencing Guidelines Council offers directions or advice—call it what you will—which are not acceptable to the Court of Appeal, whose authority prevails?

Baroness Scotland of Asthal

My Lords, the whole purpose of having the Lord Chief Justice chair the Sentencing Guidelines Council and having the majority of the council being made up of judicial members is to ensure that that does not happen. Guidelines and guidance are only that. My noble friend Lord Borrie was right to say that at the end of the day it will be for the individual judge, dealing with the individual case, to exercise discretion and to do justice. As is proper, he should take into account the guidelines and guidance that is provided both in the legislation and in the guidance. In the usual way, it will be a matter for the superior court to determine on appeal whether any judge has erred either in failing to discharge his duty in relation to legislation or in failing to take into account properly or at all the guidance issued in relation to the offences.

Lord Thomas of Gresford

My Lords, before the noble Baroness sits down, so that she may ensure that her party in both Houses sing from (he same song sheet, would she ensure that copies of her remarks about the judiciary and her confidence in the judiciary are passed to her colleague, the Home Secretary? As I said at Second Reading, he often gives the impression of undermining public confidence in the judiciary.

Baroness Scotland of Asthal

My Lords, I reassure the noble Lord that my right honourable friend the Home Secretary has the highest regard for our judiciary. There is no suggestion that comments made by him are intended to undermine the confidence that we should properly have in our judiciary. I hope that noble Lords have noticed that I have taken each and every opportunity available to extol the virtues of our judiciary. I do not say that, as a body, it is without blemish. Nor do I say that every member of the judiciary is of such an exemplary nature that no criticism could ever, on any occasion, be uttered. Rumour has it that they, along with the rest of us, are, indeed, human. To be human is to err. In terms of overall quality, our view—I say this somewhat immodestly—is that there is no other body to equal it. I say that with pride.

6.30 p.m.

The Lord Bishop of Worcester

My Lords, may I put one question to the noble Baroness before she finally sits down? I have accepted the correction of the noble and learned Lord that the panel will remain and I accept also the Minister's assurance that it will take every opportunity to consult some of the people I mentioned in my remarks. However, does she agree that, when considering the list included in the place where the decision is to be taken—although I grant that there will be a judicial majority—the list of non-judicial members hardly looks like a balanced representation of what we are invited to call the real world, but rather as though it has been constructed with a particular purpose in mind?

Baroness Anelay of St Johns

My Lords, I understand perfectly the principles on which the right reverend Prelate and my noble friend Lord Renton would support the noble and learned Lord, Lord Ackner. However, I am not able to follow them in their support for the reasons I gave earlier. The principal reason is that I was able earlier to say only that there should be exclusively judicial members on the Sentencing Guidelines Council if that were part of the whole package, which has been rejected. So I cannot follow the route of the noble and learned Lord.

No doubt there will be other occasions during the remainder of our consideration when principled Members on my own Benches will find themselves supporting amendments that I cannot and would not support. I hope that does not trouble them; it does not trouble me because I respect totally their principles. We may well find that we enter different Division Lobbies, or I may abstain when they vote.

Turning to the remarks made by the Minister, I welcome the fact that once again, as she has now done so often, she carefully enunciated her confidence in the judiciary. At the beginning of the Report stage I omitted to do what I have tried to do at each stage of the Bill; that is, to declare an interest. I am married to someone who sits as a judge part-time; his appointment is not as a full-time judge. However, even if he were not my husband, I would in any case have confidence in the judiciary.

I accept the assurances given by the noble Baroness as regards her own amendments. As I guessed in advance, they will achieve the objective I seek; that is, to have a majority of voting members from the judiciary on the Sentencing Guidelines Council, even though that has been done for a reason different from that which I would have liked. None the less, I am delighted with her explanation and I beg leave to withdraw the amendment.

Baroness Scotland of Asthal

My Lords, before the noble Baroness withdraws her amendment, I should take this opportunity to declare my own interest, which I realise that I have neglected to do. I declare a vested interest as one of Her Majesty's recorders and one of Her Majesty's deputy High Court judges.

Amendment, by leave, withdrawn.

Lord Ackner moved Amendment No. 213: Page 89, line 35, leave out paragraph (c).

The noble and learned Lord said: My Lords, I beg to move, with enthusiasm, Amendment No. 213.

I shall not spend time repeating any of the remarks that I have made, but I should like to refer to the question of the Parole Board. That board quite rightly has a mixed membership, but the issue before it is the evaluation of risk. Such an evaluation is not a sole judicial function. It needs the input of psychiatrists, social workers and a judge, among others. So, although it is an example of how the judiciary and the laity can work together, it is not a fair analogy.

I listened with interest to what the noble Baroness said about the enthusiasm of the Home Secretary for judges, but I shall reserve my observations until we come to Schedule 19.I beg to move.

6.35 p.m.

On Question, Whether the said amendment (No. 213) shall be agreed to?

Their Lordships divided: Contents, 12; Not-Contents, 113.

Division No.2
CONTENTS
Ackner, L.	Renton, L. [Teller]
Colville of Culross, V.	Saltoun of Abernethy, Ly.
Listowel, E.	Selsdon, L.
Mar,C.	Stern, B. [Teller]
Palmer, L.	Walpole, L.
Pilkington of Oxenford, L.	Worcester, Bp.

NOT-CONTENTS
Acton, L.	Evans of Parkside, L.
Alli, L.	Evans of Temple Guiting, L.
Amos, B. (Lord President)	Farrington of Ribbleton, B.
Andrews, B.	Faulkner of Worcester, L.
Archer of Sandwell, L.	Filkin, L.
Ashton of Upholland, B.	Fitt, L.
Bach, L.	Gale, B.
Bassam of Brighton, L.	Gavron, L.
Bernstein of Craigweil, L.	Goldsmith, L.
Bhatia, L.	Goudie, B.
Borrie, L.	Gould of Potternewton, B.
Bragg, L.	Graham of Edmonton, L.
Brennan, L.	Greenway, L.
Brett, L.	Grocott, L. [Teller]
Brooke of Alverthorpe, L.	Hannay of Chiswick, L.
Burlison, L.	Harrison, L.
Campbell-Savours, L.	Haskel, L.
Carter, L.	Hayman, B.
Christopher, L.	Hilton of Eggardon, B.
Clark of Windermere, L.	Hogg of Cumbernauld, L.
Clarke of Hampstead, L.	Hollis of Heigham, B.
Cohen of Pimlico, B.	Howells of St. Davids, B.
Corbett of Castle Vale, L.	Hoyle, L.
Crawley, B.	Hughes of Woodside, L.
David, B.	Hunt of Kings Heath, L.
Davies of Oldham, L.[Teller]	Hylton, L.
Desai, L.	Irvine of Lairg, L.
Dixon, L.	Jones, L.
Donaldson of Lymington, L.	Judd, L.
Dormand of Easington, L.	King of West Bromwich, L.
Dubs, L.	Kirkhill, L.

Lea of Crondall, L.	Randall of St. Budeaux, L.
Levy, L.	Rendell of Babergh, B.
Lipsey, L.	Rooker, L.
Lloyd of Berwick, L.	Scotland of Asthal, B.
Lockwood, B.	Sewel, L.
Lofthouse of Pontefract, L.	Simon, V.
Macdonald of Tradeston, L.	Smith of Leigh, L.
McIntosh of Haringey, L.	Stoddart of Swindon, L.
McIntosh of Hudnall, B.	Stone of Blackheath, L.
MacKenzie of Culkein, L.	Strange, B.
Mackenzie of Framwellgate, L.	Symons of Vernham Dean, B.
Mallalieu, B.	Taylor of Blackburn, L.
Mason of Barnsley, L.	Temple-Morris, L.
	Thornton, B.
Massey of Darwen, B.	Tomlinson, L.
Merlyn-Rees, L.	Turnberg, L.
Mitchell, L	Turner of Camden, B.
Monson, L.	Ullswater, V.
Morris of Aberavon, L.	Warner L
Murray of Epping Forest, L.	Warwick of Underclifie, B.
Nicol, B.	Weatherill, L.
Parekh, L.	Whitaker, B.
Pendry, L.	Whitty, L.
Pitkeathley, B.	Wilkins, B.
Plant of Highfield, L.	Winston, L.
Radice, L.	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.45 p.m.

Baroness Scotland of Asthal moved Amendment No. 213A: Page 89, line 35, leave out "five" and insert "four

On Question, amendment agreed to.

[Amendment No. 214 not moved.]

Baroness Scotland of Asthal moved Amendments Nos. 214A and 214B: Page 90, line 8, at end insert "and Page 90, line 9, leave out from "crime" to end of line 10.

On Question, amendments agreed to.

[Amendment No. 215 not moved.]

Baroness Scotland of Asthal moved Amendment No. 215A: Page 90, line 11, leave out subsection (5) and insert— (5) The persons eligible for appointment as a non-judicial member by virtue of experience of criminal prosecution include the Director of Public Prosecutions.

The noble Baroness said: My Lords, this amendment forms part of the group that we have just discussed. The purpose of reducing the number of non-judicial members is to recognise the force of the argument concerning the appointment of a mainstream civil servant to the council. The proposed five non-judicial members will bring experience that covers the whole spectrum of a criminal case, from detection of the offender to completion of the sentence—an issue we discussed in some detail earlier.

As I said, concerns have been raised about the possible appointment of the commissioner for correctional services as the person who would bring to the council experience of sentencing policy and the administration of sentences. The issue here has been the role and responsibilities of a mainstream civil servant and the possible conflict between the responsibility to Ministers and the responsibility as a member of the independent body. It will be of great benefit to the council to have direct access to that person.

I have already resisted the previous amendments of the noble and learned Lord, Lord Ackner, and I shall resist his next one. The noble and learned Lord proposed that the council should consist only of judicial members and those amendments have been lost.

In the circumstances, it is essential that each of the specified areas of experience is covered, as I argued on the previous amendments. In view of what has happened, I hope that the noble and learned Lord will withdraw his amendment.

I apologise for not being immediately fluent. I have repeated all that I said earlier because.I thought that I had dealt with the issue then. I beg to move.

On Question, amendment agreed to

[Amendment No. 216 not moved]

Baroness Scotland of Asthal moved Amendment No. 216A: Page 90, line 19, at end insert— (8A) The Secretary of State may appoint a person appearing to him to have experience of sentencing policy and the administration of sentences to attend and speak at any meeting of the Council.

On Question, amendment agreed to.

Clause 154 [Duty of court to have regard to sentencing guidelines]:

Lord Ackner moved Amendment No. 217: Page 92, line 44. at end insert— ( ) Nothing in subsection (1) shall fetter the judges' overriding discretion in the individual case to set the sentence he thinks is appropriate.

The noble and learned Lord said: My Lords, I do not know to what extent in this House I am pushing at an open door. It is very difficult to know. Certainly the noble Baroness has constantly referred to the fact that judicial discretion will not be interfered with in any way.

I took heart—not for very long—way back in January when the noble and learned Lord, the reluctant Lord Chancellor, was making a Motion on sentencing policy. He set out how everything is based largely on Mr Halliday, and then said: I also make it clear that the proposals do not for a moment undermine the basic principle that a judge must act independently on individual cases to decide what an appropriate sentence would be, based on the facts. Nobody would dispute the proposition advanced on all sides of this House that the range of offenders and offences is wide and each case must be considered on its individual facts".

He said a little later: We want Parliament and the Secretary of State to have a role … There must be a combination of Parliament and judges setting the guidelines, with the judges ultimately deciding, entirely independently, on individual cases. That is the correct approach, and it is the approach reflected in the Criminal Justice Bill that is currently passing through the Commons. It represents no infringement of the individual judge's right to decide on the appropriate decision in the individual case".—[Official Report, 15/1/03; cols. 253–254.]

I therefore hope that I shall be, if not interrupted, at least told that all that is still sterling silver and that my amendment is in no way resisted. I beg to move.

Baroness Anelay of St Johns

My Lords, I should like to speak to Amendment No. 226 in my name, which is in the same group as the amendment of the noble and learned Lord. It seeks to examine the effectiveness of paragraphs 7 and 8 of Schedule 19 in limiting the power of the executive to interfere in judicial discretion in the process of sentencing for murder.

I appreciate that we will come much later to a detailed discussion of Schedule 19 and its related powers, but I thought that it was right to group this amendment with that of the noble and learned Lord so that I could put my position on the record and invite the Minister to give what I hope will be the Government's main defence and justification to the noble and learned Lord.

When accused of undermining the role of the judiciary by their proposal in the Bill, the Government have in the past sought refuge in paragraphs 7 and 8 of Schedule 19. They have said that there is still judicial discretion in determining the length of a sentence for murder. The judge can vary it up or down, they say, from a starting point laid down in Schedule 19, by taking mitigating or aggravating factors into account. Paragraph 8 then says that detailed consideration of these factors may result in the judge passing a minimum term of any length at all, whatever the starting point may have been. Indeed, it may result in the judge making a whole life order. The decision is his, so they say.

My amendment reduces the level of consideration that the judge must give to the aggravating or the mitigating factors. My amendment would mean that the judge would give consideration rather than detailed consideration to the factors before passing sentence.

I would be grateful if the Minister could set out clearly on the record why the Government believe that this particular part of Schedule 19 leaves the judge with the power to exercise his judicial discretion with regard to the sentences within Schedule 19 rather than being directed by the Secretary of State.

Lord Ackner

Before that amendment is considered, it should be grouped—should it not?—with my Amendment No. 225C, which is immediately before it, and which says that nothing in Schedule 19, shall fetter the judge's own discretion in the individual case to set the sentence he thinks is appropriate".

Baroness Anelay of St Johns

My Lords, since it is a question on Report, I am able, within the rules, to answer it. I purposely did not group my amendment as the noble and learned Lord suggests because I wanted to give the Government, at this stage, the opportunity to give their defence on judicial discretion with regard to Schedule 19. I hope that I made it clear in our previous debate on sentencing that I am no longer able to go down the route taken by the noble and learned Lord, Lord Ackner. Therefore, because he has dismissed the package of proposals I put forward, I cannot support his amendments. I therefore do not group amendments of mine with his where I think there is any chance that I may need to divide the House. I do not wish to follow a Division pressed by the noble and learned Lord which he may win or lose but which would pre-empt my own action.

Lord Carlisle of Bucklow

My Lords, I strongly support the noble and learned Lord, Lord Ackner, on Amendment No. 217. We have just agreed, as a House, to the setting up of a Sentencing Guidelines Council. It will have great authority; it will have members who are respected, and I am sure their views will be respected. They will issue guidelines. However, there is nothing new in issuing guidelines. The Court of Appeal has been issuing guidelines for many years.

The Bill states specifically that every court must, in sentencing an offender, have regard to any guidelines which are relevant to the offender's case. That is the position at the moment. Yet no one suggests that the passing of guidelines by the Court of Appeal in any way overrules the final discretion of the judge who has tried the case to decide the appropriate sentence. I think, in fact, that the words used by the noble and learned Lord, Lord Ackner, the judges' overriding discretion in the individual case to set the sentence he thinks is appropriate should be on the face of the Bill when we are setting up a Sentencing Guidelines Council.

The Minister has on many occasions expressed her confidence in the judiciary. She has said that this Bill is in no way an attack on the judiciary. She tells us that her right honourable friend the Home Secretary has an equal confidence in the judiciary and that they have confidence in the way in which the guidelines have been used until now and the way in which the courts have interpreted them. The way in which the courts have interpreted them is by having regard to those guidelines but, in the end, the judge has an overwhelming discretion, based on everything he has seen and heard in that court, to decide what the appropriate sentence is, and the guidelines will not be able to overrule that discretion. I hope very much that the Minister, who has expressed that confidence in the judiciary, will be prepared to accept this amendment.

Lord Thomas of Gresford

My Lords, the ringing sentiments which the noble and learned Lord, Lord Ackner, has read out from earlier proceedings set out the Government's position as we have understood it throughout. I am quite sure that we will not hear any resiling from that position tonight.

I hope that the Minister will be able to give us something that can be put in the front of any Bench book on sentencing that the Sentencing Guidelines Council issues so that every judge who deals with sentencing matters will know from the very beginning of the book that he has absolute discretion regarding what his sentence should be.

7 p.m.

Baroness Scotland of Asthal

My Lords, I am obviously tempted by the noble Lord's invitation, but he will know that the Judicial Studies Board would probably be very alarmed if I took it up. The Judicial Studies Board is independent and crafts its own guidance, and what goes into the Bench Book is not something on which we mere Ministers would ever attempt to trespass.

The principle of judicial independence is one of great importance and one that the Government have sought to protect in the provisions. The Government recognise that issues concerning sentences are very important to society as a whole, which is why we have built on the success of the Sentencing Advisory Panel by creating a process for formalising sentencing guidelines, which brings in a wide range of views but continues to leave the final decision with the Sentencing Guidelines Council, which is independent and will have a majority of judicial members.

The noble Lord, Lord Carlisle of Bucklow, is absolutely right in saying that guidelines have been with us for a very long time and have been issued by various different bodies or parties—if one wants to refer to the Lord Chief Justice or the Court of Appeal, or any of the others that went before. On each occasion when the guidelines have been issued, they have been considered with seriousness and propriety by the judiciary in seeking to do justice in individual cases. They have been taken into account, but they have not provided a straitjacket out of which a judge cannot go in order to do justice on the merits of the case in point.

A guideline will be issued after extensive consultation and thought and will reflect a considered view of the right level at which to start thinking about a sentence in particular circumstances. Guidelines exist to help a court to develop a consistent approach to crime and to make clear to offenders, their advisers and the public the important factors in dealing with particular types of cases. The current provision, that a court shall "have regard to" a relevant guideline, emphasises that guidelines are important. However, as has always been the case, it is for the court to make the decision on the sentence in the light of the circumstances before it.

It is right that a court should have regard to those guidelines, and that is what is expected now. The provision in the Bill is complemented, as the noble Lords know, by Clause 156, which requires a court, in explaining its sentence, to give relevant reasons when the sentence passed is of a different kind or outside the range contained in the guidelines. The provision will help to ensure not only that a guideline has been properly considered, but that anyone with an interest in a case can understand the line of thought that has led to a decision different from that which might have been expected.

Every case is different, and no guideline can cover every eventuality, but it is crucial for confidence in the sentencing system that it is clear why a decision has been made—particularly when, at firs t blush, it may seem a little unusual. It is right that a court that passes a sentence should explain why it has reached its decision. That approach is already regarded as good practice, and the best of our judges do it anyway. Doing so by reference to guidelines will assist clarity and understanding by providing a common and easily accessible point of reference. Your Lordships will know that we have had difficulties with widely varying regional approaches to some issues, which does not give confidence.

The amendment states something that is already self-evident—that a court passing a sentence must make up its own mind about the appropriate sentence. Those decisions are not, and never have been, subject to unlimited discretion. There is always; the maximum sentence passed by Parliament, as part of the Act creating the offence, or statutory limitations on the availability of a particular penalty, which may set limits on the type of sentence available or the circumstances in which it can be passed. Justice requires a consistent approach and clarity about what circumstances will make an offence of a particular type more or less serious. For many years, guidelines have been issued by the Court of Appeal or the Magistrates' Association, all of which came through other decisions of the Court of Appeal or the Divisional—now Administrative—Court. All courts have recognised the authority of decisions coming from the two courts and have recognised that they are bound to apply the guidance that has come through them.

The creation of the council builds on that approach, removes some of the practical problems of the present system and enables wider guidance to be given. It is important to remember that in Committee it was emphasised by some of the judicial Members that often the Court of Appeal has felt constrained. It has not given guidelines about everything, but now the Sentencing Guidelines Council has the opportunity to do so. It is simply not possible to say that nothing in guidance shall fetter a court's discretion.

Judges have never been able to go on frolics of their own, and we do not propose that they should start now. It is clear that there is an obligation on a court to have regard to the guidelines and, in giving reasons for a sentence, to use the guidelines as a point of reference. However, it will continue to be the court's responsibility to decide sentences, and it will continue to be the case that any concerns over any sentence can be resolved only through the Court of Appeal.

Amendment No. 226 would remove the word "detailed" from the deliberation that the court must make of aggravating and mitigating factors. The effect of the amendment is not entirely clear, but I know why the noble Baroness has tabled it. I shall not deal with that amendment specifically, unless the noble Baroness wants me to—which she indicates that she does not. For that, I give her many thanks.

I hope that I have dealt with the points made by the noble and learned Lord, Lord Ackner. We believe that the framework as drafted strikes a balance between promoting consistency and clarity in tariff setting while protecting the discretion of the judge to pass a tariff suitable to the particulars of each case. I hope that noble Lords, and the noble and learned Lord in particular, will find that I have said enough to make it plain that, while discretion will remain, it will be exercised with propriety within the guidelines, as it has always been.

I hope that on that basis the noble Baroness will not move her amendment and that the noble and learned Lord will feel a modicum of satisfaction, although I do not expect him to be content.

Lord Thomas of Gresford

My Lords, will the Minister clarify one matter? She said in her final words that a sentence must be within the guidelines, whereas earlier she said that it could be without the guidelines if the judge said that it was just for it to be so.

Baroness Scotland of Asthal

My Lords, I meant that the judge would have to take into consideration the guidelines. Within the parameters of the guidelines, one must identify that one has taken them into account, and clarify, if one is not going to abide by them, why one has departed from them. That is the normal way—it is what many of us who have had the joy of practising in the courts of this country have become familiar with.

Lord Carlisle of Bucklow

My Lords, the Minister said that it was self-evident that the discretion existed, so it was unnecessary to add the words to the Bill. Is it not equally self-evident that, in sentencing an offender, the court must, have regard to any guidelines which are relevant to the offender's case"? Why have the clause at all, in that case? Both are self-evident, so surely it is wrong to put the one in and not the other.

Lord Ackner

My Lords, I believe that I am one of the leading admirers—alphabetically, probably the leading admirer—of the Minister's forensic skill and her charm in putting forward an answer to an unarguable case.

The noble Baroness overlooks the fact that I do not suggest that the judge who decides the case should have complete freedom to do whatever he likes. There is provision that enables the Attorney-General to take any decision of a trial judge that he thinks unduly lenient to the Court of Appeal. If the Court of Appeal agrees, its decision becomes the sentence of the court. I do not suggest that there is any infallibility about the trial judge; I merely want the noble Baroness to agree that he has complete and unfettered discretion within the law to pass the sentence and that nothing in the sentencing guidelines detracts from that important principle.

I stress that because the same problem arose—when I referred to it—some time ago. I said: There is a dangerous illusion that everyone supports judicial independence; but do they? I recently pointed out that that very question was answered by Lord Hailsham in a lecture that he gave in 1989.I shall shorten the quotation as follows: 'Certainly not the Opposition—whatever Party happens to be on the Speaker's left. Certainly not Party Conferences of any hue. And least of all I assure you, individual members of the Cabinet whose Departmental interests from time to time basically conflict, not only with the view of the judiciary, where they are entitled to differentiate, but in the provision of the necessary means to enable the Courts to discharge their functions'".—[Official Report, 6/10/ 03; col. 30.] That is why I want that clearly stated. Here is a case in which the present Lord Chancellor, when he has only his one hat as Secretary of State, cannot be either of his own volition or bullied into saying that that is not a discretionary matter for the judges but that the guidelines council binds everyone in a way that is any way inimical to that discretion. I should therefore like to test the views of the House.

7.13 p.m.

On Question, Whether the said amendment (No. 217) shall be agreed to?

Their Lordships divided: Contents, 36; Not-Contents, 90.

Division No.3
CONTENTS
Ackner, L.	Palmer, L.
Barker, B.	Rennard, L.
Carlisle of Bucklow, L.	Renton, L.
Clement-Jones, L.	Roper, L.
Colville of Culross, V.	Russell, E.
Craigavon, V.	Saltounof Abernethy, Ly.
Dahrendorf, L.	Sharp of Guildford, B.
Dholakia, L.	Shutt of Greetland, L.
Hamwee, B.	Stern, B. [Teller]
Harris of Richmond, B.	Thomas of Gresford, L.
Hereford, Bp.	Thomas of Swynnerton, L.
Hylton, L. [Teller]	Thomas of Walliswood, B.
Listowel, E.	Tope, L.
Livsey of Talgarth, L.	Wallace of Saltaire, L.
Maddock, B.	Walmsley, B.
Mar, C.	Walpole, L.
Mar and Kellie, E.	Weatherill, L.
Monson, L.	Worcester, Bp.

NOT-CONTENTS
Acton, L.	Carter, L.
Alli, L.	Chandos, V.
Amos, B. (Lord President)	Clark of Windermere, L.
Andrews, B.	Cohen of Pimlico, B.
Archer of Sandwell, L.	Corbett of Castle Vale, L.
Ashton of Upholland, B.	Crawley, B.
Bach, L.	Davies of Oldham, L.[Teller]
Bassam of Brighton, L.	Desai, L.
Bernstein of Craigweil, L.	Dixon, L.
Borrie, L.	Dormand of Easington, L.
Brennan, L.	Dubs, L.
Brett, L.	Evans of Parkside, L.
Brooke of Alverthorpe, L.	Evans of Temple Guiting, L.
Burlison, L.	Farrington of Ribbleton, B.

Faulkner of Worcester, L.	Mackenzie of Framwellgate, L.
Filkin, L.	Mallalieu, B.
Gale, B.	Massey of Darwen, B.
Gavron, L.	Mitchell, L.
Goldsmith, L.	Morris of Aberavon, L.
Goudie, B.	Nicol, B.
Gould of Potternewton, B.	Pendry, L.
Graham of Edmonton, L.	Pitkeathley, B.
Grenfell, L.	Plant of Highfield, L.
Grocott, L. [Teller]	Radice, L.
Harrison, L.	Rendell of Babergh, B.
Haskel, L.	Rogan, L.
Hayman, B.	Rooker, L.
Hilton of Eggardon, B.	Scotland of Asthal, B.
Hogg of Cumbernauld, L.	Sewel, L.
Hollis of Heigham, B.	Smith of Leigh, L.
Howells of St. Davids, B.	Stoddart of Swindon, L.
Hoyle, L.	Stone of Blackheath, L.
Hughes of Woodside, L.	Symons of Vernham Dean, B.
Hunt of Kings Heath, L,	Taylor of Blackburn, L.
Irvine of Lairg, L.	Temple-Morris, L.
Jones, L.	Thornton, B.
Kirkhill, L.	Tomlinson, L.
Lea of Crondall, L.	Turnberg, L.
Lloyd of Berwick, L.	Turner of Camden, B.
Lockwood, B.	Warner, L.
Lofthouse of Pontefract, L.	Warwick of Undercliffe, B.
Macdonald of Tradeston, L.	Whitaker, B.
McIntosh of Haringey, L.	Whitty, L.
McIntosh of Hudnall, B.	Wilkins, B.
MacKenzie of Culkein, L.	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

7.23 p.m.

Clause 165 [Intermittent custody]:

Baroness Anelay of St Johns moved Amendment No. 218: Page 99, line 18, at end insert— ( ) An order under subsection (8) shall not be made unless a draft of the order has been laid before, and approved by a resolution of each House of Parliament.

The noble Baroness said: My Lords, we now come to Clause 165, which establishes the framework for the new sentence of intermittent custody, which was recommended in the Halliday report. It would allow certain offenders who are serving short sentences of imprisonment to serve part of the week in prison and part on licence in the community. The classic example, of course, is weekend jail where an offender is allowed into the community during the week, perhaps in order to keep his job or look after his family, but is then required to return to prison at the weekend. The difficulty is that Clause 165 does not lay out in detail how the new proposals are to work. Subsection (8) leaves the mechanics of when offenders will be required to be in prison and when they will be allowed to leave prison entirely to secondary legislation to which only the negative resolution procedure is to apply.

In Committee, the Minister, the noble Baroness, Lady Scotland, said of this order-making power: That power allows the Secretary of State to make an order specifying that intermittent custody licence periods will consist of a prescribed duration; that they will begin or end at prescribed times of day; or that they should include or not include certain days of the week … The specifications in the order will be drawn up and if necessary amended for the optimal functioning of intermittent custody"—

not a very felicitous phrase, but I think that I know what she meant— as shown by the two pilot schemes that are due to be launched in January",—[Official Report, 8/10/03; col. 381.]

We agree with the Government that it is important to learn from those pilot schemes to see what works well and to identify any difficulties, so that before the scheme is applied more generally the Government would know better what to do—or, as the Minister colloquially said, the Government would have a better handle on how it should be crafted.

The difficulty is that we are yet again being asked by the Government to give our blessing in statute to something that is very shadowy. The Bill gives complete discretion to the Secretary of State to determine the way in which intermittent custody will work. Over the past two years, since the Halliday report, the Home Office's own assessment of how this custody is to work has been sketchy to say the least.

As we have said, because of the level of uncertainty surrounding the detail of the Government's plan so far and the wide-ranging scope of this order-making power, we believe that the whole procedure should be subject to the affirmative resolution procedure instead of the negative. I beg to move.

Lord Carlisle of Bucklow

My Lords, I support my noble friend Lady Anelay. We have really been told nothing at all about how intermittent custody will work. I think that it is a very good idea in principle. I support it and said so in Committee. However, I do not think that we have had any explanation of how it will work. I raised one simple point in Committee—that all previous arguments against such an arrangement were based on the difficulty of accommodation. I do not know what thought has been given to where these people who are to spend merely their weekends in prison will in fact be imprisoned. Will the beds in those cells be available for the rest of the week? There are many such problems.

Moreover, it is not at all clear how this clause and these proposals on intermittent custody fit in with the previous clause dealing with custody plus. If I understand the position correctly, one person could commit an offence and receive a sentence of nine months but then be told that his custody period is only two weeks. Another person could be given a sentence of six months but be told that he has an intermittent custody period of up to 90 days. Which is the longer sentence? Which is intended to be the graver sentence? I am not sure that full care has been given to how to marry the two. I find it very difficult to understand. As I am sure the Minister herself has said, one of the problems with sentencing is the complaint that the sentence bears little relation to that which is served. On this basis, people who serve up to nine months may come out after 14 days, but someone with a shorter sentence may stay inside longer.

I make those remarks in as helpful a tone as my cold will allow. I hope that the Minister will be able to say a little more about how this important new proposal will operate.

7.30 p.m.

Lord Lucas

My Lords, as the Minister will be looking for accommodation that is free at weekends and not in the week, and looking also for purposeful activity for the prisoners concerned, and prison education is the responsibility of the Department for Education and skills, perhaps we could find space in schools and do something with these prisoners who are often in need of education. The point has been well made on many occasions that short periods of custody generally do not have a beneficial effect because the people concerned do not get involved in anything. I hope that the two departments, having decided to co-operate, might co-operate on this issue too.

Baroness Scotland of Asthal

My Lords, that matter is slightly wide of this amendment but I can certainly reassure the noble Lord that we are getting the highest level of co-operation with our colleagues from the Department for Education and Skills who have worked with us on a number of issues in relation to education in prisons. I am sure that we shall continue to work diligently together to improve the educational opportunities that are made available in our prisons, as the noble Lord suggests.

Amendment No. 218 seeks to change the negative resolution procedure to the affirmative resolution procedure. I understand the noble Baroness's arguments in that regard, but I respectfully say that I do not agree with them on this occasion.

This order-making power is necessary to enable the Secretary of State to prescribe the duration, times or parts of the week for the period of intermittent custody. That will ensure that we are able to administer the sentence effectively through the Prison Service and the probation service. The details of the length and timing of licence periods is best left to delegated legislation given the need to respond flexibly in the light of experience of the two intermittent custody pilots.

What we have in mind for the first order is a choice between weekend and weekday release. This new sentence will require close working between the Prison Service and the probation service throughout the term of the sentence. We need to ensure that the sentence patterns are manageable for many of the reasons that the noble Lord, Lord Carlisle of Bucklow, identified. How will this work, if it is to work effectively? What are the schemes which the court can be invited to adopt in dealing with a particular offender? We believe that the negative resolution procedure provides an appropriate level of parliamentary scrutiny given the non-controversial nature of the subject matter. The Delegated Powers and Regulatory Reform Committee shared that view and did not raise any concerns about the nature of the order-making power. Therefore, Amendment No. 218 is one with which I cannot agree.

I wish to say a few more words about the pilots. We hope that pilots will take place in two purpose-built sites in Derbyshire and Lancashire. We hope too that those pilots will start about the end of January 2004. We obviously want to create these opportunities in a way that makes sense for the service that has to deliver them and for the offenders. Custody plus, which will involve longer sentences, will enable the court to do something slightly different. The court may decide, because of the nature of the defendant's offending pattern, that there is a process through which the defendant might successfully be able to go which would include in part imprisonment and in part proper controlled supervision in the community. That will enable the defendant to be rehabilitated so as to reduce the risk that that defendant might create of continuing in the cycle of crime. For example, one could have a block period of a number of months in custody followed by—because of the assessment process that the offender has gone through—either DTO or curfew or some other form of therapeutic intervention with supervision. It enables the court to look at the nature of the offence, the nature of the offending behaviour and any underlying difficulties which may cause or contribute to that offending. For example, if there is abuse of drugs or alcohol or something of that sort, that cycle has to be addressed and dealt with. Those are the two differences. We believe that the negative resolution procedure will enable us to do this.

Baroness Anelay of St Johns

My Lords, I am grateful to the Minister for providing some more helpful information on the record than was available in Committee. We shall still disagree on the fundamentals. She quite rightly told the House that the Delegated Powers and Regulatory Reform Committee did not agree with me on this occasion. However, on occasion I do not agree with the committee and still wish to press a matter. However, this is not one of those occasions. I agree with all that my noble friend Lord Carlisle of Bucklow said. We remain concerned about the lack of advance thinking on some of these schemes. However, like my noble friend Lord Carlisle of Bucklow, I recognise the importance and, I hope, the value of this particular scheme. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton

My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, may I suggest that the Report stage begins again not before 8.36 p.m.

Moved, That further consideration on Report be now adjourned.— (Lord Bassam of Brighton. )

Lord Ackner

My Lords, I wish to raise a point. Amendment No. 221 is still a long way down the Groupings List and it is the amendment which was moved at 7.15 p.m. on a previous occasion to make the penalty for murder no longer mandatory but discretionary. There was a plea that we—I was conjoined with the noble and learned Lord, Lord Lloyd of Berwick—should not press the amendment to a Division. That was at 7.15 p.m. on that occasion. I respectfully inquire whether it is proposed to reach the same amendment, Amendment No. 221, much later tonight. If so, I should tell the House that I shall not move it. The noble and learned Lord, Lord Lloyd, has had to leave. I shall seek to table the amendment again at Third Reading. It was not proceeded with on the previous occasion following a plea to bring it back so that the House could reconsider this important matter. It is quite clear that there will not be many noble Lords to consider it at about 9.30 p.m. or 10 p.m. when we reach it.

Lord Bassam of Brighton

My Lords, I am in the hands of your Lordships' House. Speaking on behalf of the Government there is nothing I can do to ensure that the amendment is dealt with any earlier. Looking at the clock and the number of groups of amendments before us, it is not a particularly considered view but my suspicion is that we may not reach Amendment No. 221. When we return from dinner there will only be one hour and 20 minutes before 10 o'clock. I am afraid that I can say no more that that.

Lord Carlisle of Bucklow

My Lords, will the Minister say that we shall not go further than the amendment before Amendment No. 221?

Lord Bassam of Brighton

My Lords, it is not for me to say. It is very much a matter for the House and the way in which it conducts itself.

Lord Ackner

My Lords, before we move on, I inform the House that I shall not move Amendment No. 221. If it is not reached, I ask that I come back to it at Third Reading. That will stop people staying behind unnecessarily for it.

On Question, Motion agreed to.