Criminal Justice Bill

HL Deb 08 October 2003 vol 653 cc296-362

3.18 p.m.

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

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 148 [Power to increase limits]:

On Question, Whether Clause 148 shall stand part of the Bill?

Baroness Anelay of St Johns

I gave notice that I objected to Clause 148 standing part of the Bill. Grouped with the objection is a series of amendments, one of which, Amendment No. 239BA, a technical consequential amendment, stands in my name. Since I gave notice that I objected to the clause, I have received the support of the noble Lords, Lord Goodhart and Lord Dholakia. I also welcome the fact that the noble Baroness, Lady Scotland, has added her name. She has very helpfully spotted a whole host of consequential amendments that had completely escaped me. I can therefore be relatively brief on this matter. However, it is important to put on the record why we objected and why it is welcome that the Government have accepted the proposition that the clause should not form part of the Bill.

The Bill already makes a major extension to magistrates' maximum sentencing powers, from six months to 12 months for a single offence. In Clause 148, the Government propose to take the power further to extend this maximum, by secondary legislation, to 18 months for a single offence, and to an overall maximum of two years in the case of multiple offences for which consecutive sentences were then imposed.

We expressed our views in another place that that was an improper use of secondary legislation. In this House, we were much encouraged by the report of the Delegated Powers and Regulatory Reform Committee, which said: According to the Home Office memorandum, a decision to use the power under clause 148 will be taken when it is demonstrated that 'magistrates are making effective use of their new sentencing powers and are retaining more cases for trial'. Although the power under clause 148 is subject to affirmative resolution, we considered whether a provision of such importance and general application should appropriately be left to delegated legislation at all. We have concluded that it should not". We certainly welcomed that view from the Delegated Powers and Regulatory Reform Committee. It seems that the Government have accepted it by adding their names to the objection to Clause 148 stand part. In expressing my objections to that, I also look forward to the remaining technical amendments being accepted by the Committee.

Lord Carlile of Berriew

On behalf of these Benches I broadly agree with what has just been said. There is a fundamental objection to delegated powers being used to increase sentencing powers for something like 97 or 98 per cent of the criminal offences which come before the courts in this country.

As has frequently been said, the way in which orders are dealt with is extremely unsatisfactory as they are unamendable. One of the procedural changes which ought to be considered by this House and the other place is to make orders, particularly those subject to the affirmative resolution procedure, amendable so that proper parliamentary debate with the opportunity of change can be achieved.

I have nothing further to add to what has already been said.

Lord Renton

I can be very brief as the noble Lord, Lord Carlile, on the Liberal Democrat Benches has already put forward very clearly the objection to Clause 148 and to the later references in the Bill giving power to the Secretary of State to increase sentences. Surely in our democratic society it should be for Parliament to prescribe what should be the maximum sentence for any offence. The granting of powers to a Secretary of State merely to increase sentences is surely wrong in principle. It is for Parliament to state maximum sentences, and that is a principle to which we should adhere.

Lord Goodhart

As a former member of the Delegated Powers and Regulatory Reform Committee, I am very glad to see that the Government have taken on board the recommendations of the present committee that this matter should be dealt with by primary legislation if it is decided to extend the sentencing power beyond the proposed 12 months. It is not always easy to see the appropriate dividing line between what can properly be done under the affirmative resolution procedure and what requires primary legislation, but I think that in this case the committee was absolutely right to say that primary legislation was needed for a change as important as this. I am very glad that the Government have accepted that contention.

Baroness Scotland of Asthal

It seems to me that comity has broken out all over the Committee. It gives me great pleasure to agree with the noble Lord, Lord Carlile, the noble Baroness, Lady Anelay, the noble Lord, Lord Renton, and, indeed, the noble Lord, Lord Goodhart. I am coming very quietly and it did not need quite so many noble Lords to bring me to this point!

It gives me pleasure to add my name to those of the noble Baroness, Lady Anelay of St Johns, and the noble Lords, Lord Goodhart and Lord Dholakia, in seeking to remove from the Bill the Secretary of State's order-making power to increase magistrates' sentencing powers further to 18 months. We have listened carefully to the comments made both in this House and in the other place and, as the noble Lord, Lord Goodhart, rightly said, to the recommendations of the Delegated Powers and Regulatory Reform Committee.

We have always recognised the need to monitor and evaluate the increase to 12 months provided for in Clause 146 and to assess the impact of this increase on sentencing practice and on the number of cases allocated to the Crown Court for trial before any further increase is provided for. The noble Lord, Lord Goodhart, is right to say that it is sometimes difficult to see where the dividing line between the affirmative resolution procedure and primary legislation should be drawn. We are very happy to draw the line in a slightly different way. As the noble Baroness said, there are a number of amendments consequential on removing Clause 148 from the Bill, mainly linked with the changes to offence maxima. I hope that the Committee will forgive me if I do not burden it with the detail of those consequential amendments which will be moved in due course.

Clause 148 negatived.

Clause 149 [Pre-sentence reports and other requirements]:

Lord Dholakia moved Amendment No. 161FD: Page 89, line 40, leave out from "18" to first "the" in line 1 on page 90.

The noble Lord said: The purpose of our amendment is to ensure that the court is aware of all the relevant information prior to sentencing when dealing with offenders under the age of 18 years.

In its present form the clause permits a court to impose a discretionary custodial sentence on a young offender without the safeguard of obtaining a pre-sentence report. We believe that that is a dangerous provision which does not properly take into account the provisions of Section 44 of the Children and Young Persons Act 1933 which requires every court dealing with a child or young person to have regard to the welfare of the child or young person. We suggest that in the case of offenders under the age of 18 years all relevant information ought to be contained in a pre-sentence report. I beg to move.

Baroness Scotland of Asthal

I understand the noble Lord's concern but I hope that I shall be able to satisfy him that we have now dealt with the matter adequately.

As the noble Lord will know, the current provisions in the Criminal Justice Bill derive from Sections 156 and 157 of the Powers of Criminal Courts (Sentencing) Act 2000, which are a consolidation of provisions in the Powers of Criminal Courts Act 1973 and the Crime (Sentences) Act 1997.

Clauses 152 and 153 of the Bill provide for the disclosure of pre-sentence reports in court where the defendant is a juvenile, as the noble Lord indicated. In particular, subsection (3) of Clause 143 and subsection (3) of Clause 144 provide that if the defendant is under the age of 17 and is not represented by counsel or a solicitor a copy of the report need not be given to the offender but must be given to his parent or guardian if present in court.

In the light of the response of the Joint Committee on Human Rights (JCHR) and amendments proposed by the Opposition and withdrawn at Committee stage in the other place, we wish to amend the existing provisions on the circumstances in which pre-sentence reports from youth offending teams and other sentencing reports are disclosed to young defendants.

We propose that the courts should provide the juvenile with a full copy of the pre-sentence report or other report irrespective of whether they are represented or accompanied by a parent or guardian unless the courts consider that to do so would place the juvenile at risk of significant harm. I note that the noble Lord nods his assent in that regard as it is a perfectly proper step to take in terms of protection. We further propose that the courts should provide the parent or guardian with a full copy of the report unless the court considers that to do so would place the juvenile at risk of significant harm. That would be in line with the existing Youth Justice Board and Department of Health good practice.

Our aim is to ensure that the juvenile's right to fair trial is upheld by generally providing them with a copy of their pre-sentence or other report while also providing courts with the necessary discretion to make assessments on the disclosure of information on a case by case basis. In addition, we also wish to involve parents or guardians at an early stage encouraging them to take part in the court process. We want the definition of parent or guardian to encompass anyone who retains parental responsibility over the child including the local authority for children in care, where necessary.

We have defined "significant harm" in this context in accordance with Section 31 of the 1989 Act where "harm" means ill treatment or the impairment of health or development. We take the view that we also need to take into account the parent's rights under the ECHR. A parent's access to the reports is within the ambit of parental rights under Article 8. The parent's rights need to be weighed against the child's right to a private life under Article 8.

With regard to the opposition amendment tabled by the noble Lord, Lord Dholakia, and the noble Baroness, Lady Walmsley, they have 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 agree that the issue needs further consideration, and we will return to it on Report. With that assurance, I hope that the noble Lord will be content.

One reason for the previous approach is because the indictable offences were the more serious, and the court would have had to make proper inquiries. In relation to more minor offences, we want to guarantee that that happens by routine, but we know from experience that the courts have ordered appropriate reports where they have determined that they were necessary.

3.30 p.m.

Lord Dholakia

I am grateful to the Minister for her explanation. In light of what she has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 149 agreed to.

Clause 150 [Additional requirements in case of mentally disordered offender]:

Baroness Anelay of St Johns moved Amendment No. 161G: Page 90, line 29, leave out "Subject to subsection (2),

The noble Baroness said: In moving the amendment, I shall speak also to Amendment No. 161H, which is in the group. They were tabled in my name, and the noble Lord, Lord Dholakia, has signified his agreement to them.

I tabled the amendments to ask the Government whether they have considered the drafting of the clause further since debates on the matter in another place in February, much earlier this year. My honourable friend Dominic Grieve raised the matter then in Committee, asking why the Government appeared to have drafted the clause so that subsections (1) and (2) in effect cancelled each other out. Subsection (1) states that, in the case of a mentally disordered offender, the court must obtain and consider a medical report before passing a custodial sentence other than one fixed by law".

It uses "must", not "may". Unfortunately, subsection (2) states that, despite the "must" in the first subsection, the court does not need to obtain the report if it does not think it necessary to do so.

It is difficult to consider circumstances in which it would be right for a court to proceed without such a medical report. However, my objection is simply to the drafting itself, which underlies the problem. The Minister in another place sought to explain away the matter on the basis that it was simply a copy of the original drafting in Section 82 of the Powers of Criminal Courts (Sentencing) Act 2000, but I am not persuaded by that. I hope that the noble Baroness has been able to reflect and will come forward with a further explanation. The fact that drafting is not helpful in a previous Bill does not mean that we should not try to get it right now. I beg to move.

Lord Dholakia

The amendment, which we support, is grouped with a number of amendments tabled in my name. If Amendment No. 161GA were made, the clause would suggest that where the offender was or appeared to be mentally disordered or mentally vulnerable, the court must obtain and consider a medical report. That is necessary because there is sometimes failure to recognise people with learning disabilities and other vulnerabilities as mentally disordered. The category of those appropriate for a medical report should be the same as the category recognised as requiring safeguards under the Police and Criminal Evidence Act.

Given the requirement for a medical report before passing a custodial sentence, we can see no reason for the failure to require a medical report before passing a community sentence. Community sentences are demanding and are now rigorously enforced. The court needs to be certain of an offender's suitability and ability to comply with such requirements. In all cases where a report is required, it must also be very timely.

Lord Renton

Perhaps I should declare that, some years ago, I spent four years as chairman and six years as president of Mencap. Although it was very rarely that a person with severe mental disorder or handicap committed any serious offence, when they did so they could not be treated in the ordinary way. Clause 150 acknowledges that. However, my noble friend Lady Anelay is absolutely right to say that we should not have subsection (2), which would have the ill effect of nullifying subsection (1), a very important subsection. May I have the attention of the Minister? The matter is very important, in my opinion.

It is essential that we have a medical opinion. Mentally disordered people are not normally sent to prison and should not be. They are sent to hospitals where patients are confined. Of course I realise that, in some of those hospitals, patients are confined not because they have a mental condition that requires medical attention but because they are ill and therefore must be confined in a hospital from which they cannot get out. For mentally disordered people to have a custodial sentence without a medical report is surely a very serious handicap and wrong in principle.

Lord Carlile of Berriew

I want a brief word on the subject in the form of a question. Looking at Clause 150(2), in what circumstances would it be, unnecessary to obtain a medical report", bearing in mind that the offender in question, is or appears to be mentally disordered"? I hope that we can have some factual flesh put on those bones.

As someone who has—I declare an interest—an involvement in at least two charities that deal with mental illness, I know that mental illness is not always florid. It often displays itself in extremely subtle and sometimes undetectable ways, but it can be extremely profound in its effect on the person appearing before the court. The court may take the view that, because the offender stands before it appearing pretty normal and not displaying any florid symptoms of the mental illness, it can really get on with the sentencing, but it may very well be wrong. I appreciate that there is immense pressure on psychiatric services, particularly in the prisons, but that is a resource issue. Many of us believe that we save money if we have more psychiatrists in the prisons, because we find ways of keeping people out of those very expensive prisons.

I ask the Minister that factual question in the hope that she can—please—illuminate subsection (2) for those of us who do not understand it.

Baroness Scotland of Asthal

It will give me great pleasure to do so. I can tell the noble Lord, Lord Renton, that I have developed an ability from the Dispatch Box to listen and transfer information at the same time. I was fully able to take in what he said and to note that it chimed precisely, almost word-for-word, with what was said by the noble Baroness, Lady Anelay, and then followed so succinctly by the noble Lord, Lord Dholakia. I apologise if the noble Lord, Lord Renton, felt that there was any lack of my attention, but I reassure him that it was not so.

Amendments Nos. 161G and 161H would remove the court's discretion not to obtain a medical report where an offender was or appeared to be mentally disordered. I understand the anxiety expressed by those who have spoken, especially in the question raised by the noble Lord, Lord Carlile. It is important to remember that there are circumstances in which the court will already have obtained such a report under mental health legislation—for example, where it has remanded the person to hospital for treatment under Section 36 of the Mental Health Act 1983.

In this 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. It would already have the evidence in relation to that matter. 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".

Similarly, the effect of Amendments Nos. 161GA, 161GB, 161J and 161K in the name of the noble Lord, Lord Dholakia, would be to require the court to obtain and consider medical reports in a wide range of circumstances, even though the reports were not necessary to inform the sentencing decision. Perhaps I may explain why that is so.

The court is required to consider medical reports only where it has in mind to make a custodial sentence. A disposal under the Mental Health Act is available only in respect of an imprisonable offence and is generally imposed in lieu of a custodial sentence. It is available only while the offender is mentally disordered as defined in Section 1 of the Mental Health Act.

To require the court to obtain and consider medical reports where those circumstances did not apply would again be to risk wasting time and resources to no purpose. There will be occasions where the court requires evidence of an offender's mental condition, even though it does not intend to make a Mental Health Act disposal. But the court should have the discretion—that is all I am talking about—to obtain such a report where it considers it necessary. We have looked at the drafting of the Bill and considered the matter with parliamentary counsel. We are content that, as drafted, it meets the needs of the case.

Lord Carlile of Berriew

Is the Minister satisfied that Clause 150(2) does not on the face of the legislation allow the court to sentence a mentally disordered offender without a medical report being obtained? I understand that not to be the Government's intention. We all share a purpose—no criticism is involved here. Should not the Government look again particularly at subsection (1) to see whether we can achieve the purpose of ensuring on the face of the Bill that no mentally disordered or apparently mentally disordered person will be sentenced without there being a medical report from one source or another?

Baroness Scotland of Asthal

We are in sympathy with the sentiments expressed by the noble Lord. We have looked at the matter again and we believe that the two clauses as currently structured achieve that result. It is not inconsistent, as the noble Baroness, Lady Anelay, feared, because she is right: the provision states that there must be a report, but that need not necessarily be one obtained as a result of an order or direction given by the court. A report could be available: for instance, the person may already be voluntarily in the care of a mental health institution which would be available to report to the court. Therefore, the "must" is present, but, by the same token, if the court has such a report and is content that is has the basis, the judge or magistrates sentencing can dispense with the need to obtain a fresh report.

Lord Clinton-Davis

If the learned judge were to behave capriciously, is no remedy available?

Baroness Scotland of Asthal

My noble friend is right. In this area judges have tended not to behave capriciously. It is good that there is an understanding of the importance of such reports. The noble Lord, Lord Carlile, talked about those who do not have florid signs. I am sure he will know that there is a professional duty on those representing such individuals, as he has done, to raise that issue with the court in order to ensure that it knows of the underlying difficulty. Representatives must also provide reports at the court's request if it needs that information to make an informed judgment.

3.45 p.m.

Lord Carlile of Berriew

As I am tempted to respond to the noble Baroness, I shall do so. I want to place on the record one difficulty. As counsel, however strongly one advises a solicitor to obtain a report, and however strongly the solicitor holds his or her view about obtaining a medical report, the way in which the Legal Services Commission now works means that it can be a slow and difficult process to obtain the funding for such a report.

If the purpose of the exercise is to ensure that apparently mentally disordered persons have reports prepared which can be submitted to the court—I am sure that we all share that purpose—I hope that the Government will take steps to ensure that the Legal Services Commission does not, for example, place unrealistic fee limits on the psychiatrists who are asked to provide the reports. I say to the Minister—as she is in a more exalted position I have more experience of dealing with criminal trials—that cases are sometimes delayed as a result of difficulties with the Legal Services Commission and that sometimes exacerbates the symptoms that the defendant is showing.

Baroness Scotland of Asthal

I shall restrain myself from responding. I say simply that under these clauses the court will have an opportunity to ask for a report if it needs one for sentencing. We believe that the matter is covered.

Baroness Anelay of St Johns

Despite the valiant efforts of the Minister to help us further along the line of understanding the Government's intention in drafting the provision, I retain some difficulty with that. We share the Government's objective that there should be no waste of time or resources. It is as much a matter of interest to the mentally disordered person that no time or resources are wasted and that they are properly allocated to reports which are needed.

I share so much of the anxiety expressed by the noble Lord, Lord Carlile of Berriew, about the importance of the reports in each and every case. The Minister rightly directed us to the fact that one of the reasons why there is no need for a "must" but why there can be a discretion is that an appropriate report may already be available. Having listened to the Minister and others, I do not believe that the drafting necessarily enables the court to be sure that the report available is the appropriate report. Clarity on what report is acceptable is not provided in the clause as currently drafted.

I do not work miracles and in drafting I never could, but I shall undertake to look carefully at subsection (1) before Report. I shall consider whether there is a way in which we could bring back a suggestion to the Government. Linked to that is my anxiety that subsection (4) appears to be declaring, "If the court in subsection (1) does not have the right report, if it has not taken the right action, don't worry, you will not invalidate your sentence unless the person subject to the sentence has appealed against it". I do not like putting mentally disordered offenders in the position of having to be given a sentence and being able to obtain a report only when they appeal. That is doing things the wrong way round.

I made it clear that we had tabled the amendment in order to elicit an explanation and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendments Nos. 161GA to 16IK not moved.]

Clause 150 agreed to.

Clause 151 agreed to.

Clause 152 [Disclosure of pre-sentence reports]:

Baroness Scotland of Asthal moved Amendments Nos. 162 and 163: Page 91, leave out line 28 and insert— ( ) to the offender or his counsel or solicitor, ( ) if the offender is aged under 18, to any parent or guardian of his who is present in court, and Page 91, line 31, leave out subsection (3) and insert— (3) If the offender is aged under 18 and it appears to the court that the disclosure to the offender or to any parent or guardian of his of any information contained in the report would be likely to create a risk of significant harm to the offender, a complete copy of the report need not be given to the offender or, as the case may be, to that parent or guardian."

On Question, amendments agreed to.

[Amendment No. 163A had been withdrawn from the Marshalled List.]

Baroness Scotland of Asthal moved Amendment No. 164:

Page 91, line 41, at end insert— "( ) In relation to an offender aged under 18 for whom a local authority have parental responsibility and who—

1. (a) is in their care, or
2. (b) is provided with accommodation by them in the exercise of any social services functions,

references in this section to his parent or guardian are to be read as references to that authority. ( ) In this section and section 153— "harm" has the same meaning as in section 31 of the Children Act 1989 (c. 41); "local authority" and "parental responsibility" have the same meanings as in that Act; "social services functions", in relation to a local authority, has the meaning given by section 1A of the Local Authority Social Services Act 1970 (c. 42)."

On Question, amendment agreed to.

Clause 152, as amended, agreed to.

Clause 153 [Other reports of local probation boards and members of youth offending teams]:

Baroness Scotland of Asthal moved Amendments Nos. 165 and 166:

Page 92, line 9, leave out "to the offender or his counsel or solicitor" and insert— "( ) to the offender or his counsel or solicitor, and ( ) if the offender is aged under 18, to any parent or guardian of his who is present in court." Page 92, line 11, leave out subsection (3) and insert— "(3) If the offender is aged under 18 and it appears to the court that the disclosure to the offender or to any parent or guardian of his of any information contained in the report would be likely to create a risk of significant harm to the offender, a complete copy of the report need not be given to the offender, or as the case may be, to that parent or guardian. (4) In relation to an offender aged under 18 for whom a local authority have parental responsibility and who—

1. (a) is in their care, or
2. (b) is provided with accommodation by them in the exercise of any social services functions,

references in this section to his parent or guardian are to be read as references to that authority."

On Question, amendments agreed to.

Clause 153, as amended, agreed to.

Clause 154 [Pre-sentence drug testing]:

Baroness Anelay of St Johns moved Amendment No. 166A:

Page 92, line 16, leave out "14" and insert "12"

The noble Baroness said: In moving Amendment No. 166A, I shall speak also to Amendments Nos. 166B, 166C and 167A, all of which are in my name. We now reach Clause 154, which provides that if someone who is aged 14 or over is convicted of an offence and the court is considering whether or not to impose a community sentence, the court has the power to order the convicted person to have a drug test to find out whether he has class A drugs in his system.

The Explanatory Notes tell us that this clause re-enacts Section 36A of the Powers of Criminal Courts (Sentencing) Act with some modifications. One obvious modification is that the power is now extended to assess people below the age of 18. My amendments are probing in order to ask the Government to put on the record today the answers to the following questions. What other modifications has this new clause made and, if there are any, why? Why have the Government chosen the age of 14 as the magic new threshold? What about those who start drug use early? Amendment No. 166A therefore proposes the age of 12 simply as a device to cover that question. I am not proposing a reduction to the age of 12; it is simply a device to ask the Government why they have chosen the age of 14.

How routine do the Government expect the tests to be? Amendment No. 166B makes it a requirement for the court to order the test. Why are the Government restricting the test to class A drugs only? Is it not the case that the use of other drugs by younger persons may, indeed, be the early-warning system to problems with other, harder drugs later? Therefore, our amendments give the Secretary of State the power to specify other drugs to be tested.

Of course, drug testing can be of high value only when the Government commit adequate funding to services that will help the convicted person to live without the drugs. Therefore, my final question is: what extra services and funding do the Government intend to provide to cover the increased cost of the treatment for persons who will be tested under the new provisions in this clause? I beg to move.

Lord Dholakia

I shall speak to Amendments Nos. 166AA, 167ZA and 178ZB, which are grouped with Amendment No. 166A. We were deeply impressed by the representations made to us on these matters by Barnardo's and the Children's Society. Equally, we are concerned about extending drug testing to children under the age of 18.

The Bill proposes the introduction of compulsory drug testing and treatment for children. The Children's Society and DrugScope are urging the Government to reconsider those proposals on the basis that they are unnecessary, potentially counter-productive and not rooted in evidence. They also further confuse the distinctive status of children in law and within the criminal justice system. Critically, the Government have failed to demonstrate how the measures are in the best interests of children, as required by Article 3 of the United Nations Convention on the Rights of the Child.

Existing drug-testing powers in the criminal justice system are applicable only to those aged 18 and over. Under the provisions of the Bill, it is proposed that those powers be extended to anyone aged 14 and over. Clause 10 of Part 1 extends existing police drug-testing powers at the point at which a person is charged with an offence. Clause 145 of Part 12 extends the power for courts to order pre-sentence drug testing. Clause 239 of Part 12 extends the power to attach testing requirements to licence conditions following release from custody. The Bill also proposes reform to enable treatment and testing requirements to be attached to action plan and supervision orders made on offenders aged 13 and over, as set out in Clause 243 in Part 12 and detailed in Schedule 17.

We believe that the proposed measures in relation to drug-testing powers for children and treatment and testing requirements on action plan and supervision orders should be withdrawn entirely on the following grounds: they are without an explicit purpose or rationale for their necessity or effectiveness; 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; they risk making a child's right to necessary treatment for a drug problem conditional upon their past or future involvement with offending; and they come at a time when expertise and evidence in relation to children's drug problems and their relationships with offending are at an early stage of development. The evidence which exists does not suggest that the Bill's proposals will be effective.

The UN Committee on the Rights of the Child has expressed serious concern about the UK's treatment of children who are in trouble with the law and, in particular, our failure to establish a system of juvenile justice that fully integrates the UN Convention on the Rights of the Child. Our obligations under the UNCRC commit the UK to separating the system for dealing with children in trouble with the law from that for adults. The Government have offered no explanation of how these new provisions are believed to be in the best interests of the children to whom they will apply and, indeed, have offered no rationale at all, other than their being an extension of existing adult provisions.

There are a number of issues on which the Bill is further confused by making a distinction between the presence of an appropriate adult for testing at charge for to 16 year-olds and at pre-sentence testing for 14 to year-olds. The Children's Society and DrugScope believe that all children under the age of 18 should have the same rights to protection, including the protection provided by the presence and advice of an appropriate adult, as dealt with in Articles 1 and 19 of the UNCRC.

In extending the drug-testing provisions of the Criminal Justice and Court Services Act to children, the Government are also creating another offence for which children may be punished by fine or imprisonment—that of refusing to provide a sample for testing. In the general context of record levels of child imprisonment and criminalisation, we are very concerned to see the creation of yet another offence for which children might be held culpable without any specific reason being given for the extension of testing to children in the first place.

4 p.m.

Baroness Scotland of Asthal

I believe we are being pulled in two opposing directions. The noble Baroness, Lady Anelay, pulls us downwards, and the noble Lord, Lord Dholakia, seeks to pull us upwards. That tends to make me believe that we might just about be in the right place. Perhaps I may deal with why we say that that is so.

I shall deal, first, with the noble Lord's Amendment No. 166AA. That seeks to raise the minimum age for drug testing from 14 to 18, which is the current age. As I believe the noble Lord pointed out, under Section 36A of the Powers of Criminal Courts (Sentencing) Act 2000 pre-sentence drug testing is already available for adults aged 18 and over.

The purpose of this clause is to lower the minimum age from 18 to 14 in line with other drug-testing provisions. There is strong evidence to suggest an association between the frequent misuse of substances and offending and other anti-social behaviour among young people. It is important to identify young drug-misusing offenders at an early stage and to take every opportunity to encourage them to access treatment and/or other programmes of help. We therefore propose that Amendment No. 166AA should be resisted on that basis.

The noble Baroness asked: why choose the age of 14 as opposed to 12 or any other age? The provisions of this clause provide only for testing for "specified class A drugs"—that is, heroin, crack and cocaine. That is because the Government's drugs strategy is focused on those particular drugs. Research has shown that they are currently the ones most commonly associated with drug-related crime, and they are the drugs that cause the most harm. However, research also indicates that drug abuse, among children in particular, often relates to class B drugs. That would suggest that testing children aged under 14 for specified class A drugs would not currently be an effective use of resources. Therefore, we propose to resist the amendment tabled by the noble Baroness, which is a probing amendment.

However, it is important for the Secretary of State to have the ability to amend, either up or down, the minimum age for drug testing under this clause. For example, evidence may emerge to suggest that we would be justified in extending such drug testing to include persons under the age of 14, or that testing persons aged 14 to 18 was not effective. The provision therefore enables us properly to take into account the evaluation findings of this clause, once piloted—noble Lords know that we intend to pilot it—and other research evidence received.

The clause as drafted allows the Secretary of State to act upon any evidence received and, by order made by statutory instrument, amend the minimum age. Such statutory instrument is subject to the affirmative procedure and, as a consequence, stringent parliamentary scrutiny.

I turn to Amendment No. 166B which seeks to remove the discretion of the court, so that it "must"— as opposed to "may"—order a drug test when it is considering passing a community sentence. We believe that this is unnecessarily restrictive. To order a drug test routinely in all cases would not be an effective use of resources. The proposed amendment would limit the flexibility of the court to consider the circumstances before it on a case-by-case basis; for example, if a recent drug test result was already available to the court, and if the offender was tested after charge or as part of an ongoing treatment programme, or openly admitted to having a specified class A drug problem and was actively seeking help, the court might not necessarily find it of any value to order a test. We therefore propose that Amendment No. 166B be resisted.

Amendments Nos. 166C and 167A seek to broaden testing under this clause to any "specified drug". As currently drafted, drug testing is limited to "specified Class A drugs" only—that may explain why. As I have previously outlined, the Government's drugs strategy is focused on those particular drugs. For that reason, those are the drugs for which testing is already taking place, both on charge and pre-sentence for adults, and for which testing will be extended to younger people under this and other provisions in the Bill.

My right honourable friend the Home Secretary already has the power under the Criminal Justice and Court Services Act 2000 to specify, by order, different or additional class A drugs. Those drugs are detailed in the Criminal Justice (Specified Class A Drugs) Order 2001. We believe that that provides sufficient flexibility to respond to any new research evidence, should it emerge, linking other class A drugs with drug-related crime. We would therefore resist Amendments Nos. 166C and 167A.

The clause as drafted provides for the presence, of an "appropriate adult" during the testing process for those offenders who are under the age of 17. Amendments Nos. 167ZA and 167ZB seek to 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. However, I believe that it is right to say that this would not be consistent with the other drug testing provisions in the Bill; for example, the one that we discussed in relation to testing persons in police stations (Clause 12) and on release on licence (Clause 251) or with other legislation where the presence of an appropriate adult is required.

The clause as currently drafted reflects the position under the Police and Criminal Evidence Act 1984 (PACE), in which very specific safeguards are provided for persons under the age of 17 in recognition of the vulnerability of that age group and the need for protections in the particular circumstances of police detention. We believe that the safeguard of an appropriate adult should be applied consistently across the drug testing provisions of the Bill and with PACE and other legislation.

Increasing the age to include those under the age of 18 for the purposes of this clause would necessitate the presence of an appropriate adult for those aged between 17 and 18 solely for purposes relating to the testing process when this is not required under statute for other purposes. On that basis we therefore propose to resist Amendments Nos. 167ZA and 167ZB.

I hope that that fully explains why we have taken this course. Of course, we hope that by making the testing available it will enable the court to come to the most judicious and appropriate outcome for the offender and for those offended against. We really want to give the court tools to help those who are subjected to this terrible imposition of addiction to drugs to release them from it. We need the information to enable the court to do what we know will be very good work.

Baroness Anelay of St Johns

The Minister is absolutely right to direct the attention of the Committee to Clause 154 (7), which provides that the Secretary of State may by affirmative order change the age at which drug testing will be imposed. I did not follow her with as much enthusiasm when she described statutory instruments subject to the affirmative procedure as being stringent parliamentary scrutiny. I come closer to the views of the noble Lord, Lord Carlile of Berriew, that they are less than perfect in that they may not be amended. I have some injuries borne from previous parliamentary debates in relation to another department. I found that the department had cleverly constructed a statutory instrument subject to the affirmative procedure; parts of it were so benign that they were all welcomed by the House, but other parts were so objectionable that the House would have liked to dispose of them but was not able to amend them.

I accept the direction to subsection (7) but it may not be sufficient for all. In listening to the Minister's response I am grateful to her for the careful explanation. At this stage I do not intend to return to the issue on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 166A A to 167 A not moved.]

Clause 154 agreed to.

Clause 155 [Powers to order statement as to offender's financial circumstances]:

Baroness Scotland of Asthal moved Amendment No. 168: Page 93, line 24, leave out from "to" to end of line 25 and insert "a fine not exceeding level 4 on the standard scale

The noble Baroness said: This group of amendments stands in my name. Amendments Nos. 168 and 219 seek to change the maximum penalties for two offences relating to the provision of false statements regarding financial circumstances for the purposes of sentencing. These alterations of penalties have been made to ensure consistency in approach so that the relatively minor offence of providing false statements may only be punishable with a non-custodial penalty. The change in maximum penalties will make them compatible with the new sentencing framework.

The effect of the amendments will be that the maximum penalty for these offences will be a level 4 fine. Amendments Nos. 218B, 219A and 246B make similar changes to the offence of providing false statements in Section 84 of the Magistrates’ Courts Act so that it will no longer be imprisonable. The maximum penalty for this offence will therefore be a level 4 fine or a tough non-custodial penalty.

Amendments Nos. 218C and 219B make the necessary changes to ensure that an offence of knowingly or recklessly making a false statement will continue to be an imprisonable offence. This offence is more serious than those to which the previous amendments relate and concerns behaviour such as not disclosing a criminal record on a naturalisation application. It is therefore considered to be of sufficient seriousness to justify a maximum penalty of 51 weeks’ imprisonment.

Amendment No. 239AA ensures that the offence of disclosure of information may attract a maximum penalty of six months’ imprisonment prior to the implementation of custody plus and the related changes to maximum penalties. After this time it will attract a maximum penalty of 51 weeks’ imprisonment.

I wish to speak to Amendment No. 218A in the group, which is in the name of the noble Baroness. It seeks to retain imprisonment for two offences. Those offences are not considered to be of sufficient seriousness to justify a custodial penalty and in more serious circumstances the conduct to which they relate is covered by higher levels of offences.

Abusing or neglecting children or putting them in situations where they are exposed to danger is an offence under Section 1 of the Children and Young Persons Act 1933, and carries a custodial sentence of up to 10 years’ imprisonment. Cruelty to animals, including infuriating, ill-treating and causing unnecessary suffering, is an offence under Section 1 of the Protection of Animals Act 1911, and carries a custodial penalty of up to six months’ imprisonment. That maximum penalty will automatically be increased to 12 months’ imprisonment when the new sentencing framework is implemented.

To obviate the need to trouble the noble Baroness further in relation to Amendment No. 218A, I can assure her from looking at the statistics that since 1933 there has been only one example of a prosecution for the offence of causing a person under 16 years of age to be used for begging. So we have had 100 years of freedom. I beg to move.

Baroness Anelay of St Johns

I want to deal briefly with Amendment No. 218A. It was tabled for two purposes: first, to elicit the precise explanation that was given by the Minister, which, as I understand it, was not to worry because in fact there are more serious penalties that can attach themselves to these offences if they are so proved; and, secondly, it is a way to probe the principles which guided the Government in making up this very long list in the schedule. Is the general principle underlying this list that those offences are covered by other occasions where more serious penalties can be imposed?

Baroness Scotland of Asthal

It is. Perhaps I may use colloquial language for a moment: it was an opportunity to tidy things up and to make sure that we rationalised these offences in a way that was appropriate and made sense. We seek to create a new framework which will be clear and easy to apply. This very much helps us to do so. I thank the noble Baroness for tabling the amendment as it enabled me to give her the explanation she sought.

On Question, amendment agreed to.

Clause 155, as amended, agreed to.

Clause 156 agreed to. Clause 157 [Fixing of fines]:

On Question, Whether Clause 157 shall stand part of the Bill?

Lord Carlile of Berriew

Perhaps I may simply probe the noble Baroness on Clause 157(1). My question is whether that imposes any additional obligation upon already hard-pressed magistrates’ clerks and understaffed Legal Advisory Services to carry out any further paper inquiries before cases are heard.

I recall an occasion when one of my daughters took a northerly turn along Great Portland Street in a part of the street which permits only southerly travel. As a result she found herself before the Marlborough Street Magistrates’ Court. When she was very politely asked by the stipendiary magistrate about her means she said that she was living as a student on finite fatherly funding that specifically excluded fags and fines. If we are talking about that kind of inquiry, which is customary at the present time, there is no problem. However, it would be invidious if we were to impose yet another paper burden upon justices’ clerks to send out yet more forms in cases which, unless people are totally impecunious, attract the same penalties more or less whatever the means of the offender.

4.15 p.m.

Baroness Scotland of Asthal

First, I commend the noble Lord on his daughter's appreciation of the exclusion of fags and fines. This provision does not change the legislation that we have already enacted in the Powers of Criminal Courts (Sentencing) Act 2000. The position remains the same. The noble Lord need not be troubled.

Clause 157 agreed to.

Clauses 158 and 159 agreed to.

Clause 160 [The Sentencing Guidelines Council]:

Baroness Anelay of St Johns moved Amendment No. 168A:

Page 95, line 34, leave out from "members" to "appointed" in line 35.

The noble Baroness said: In moving Amendment No. 168A, I shall speak also to Amendments Nos. 169, 169A, 169B, 170 to 172N, 173 A, 173B, 239B, 239C and 250A. Most of those amendments stand in my name but some are also in the name of the noble and learned Lord, Lord Ackner. Amendment No. 250A is a government amendment.

My noble friend Lord Renton has just asked me whether I had an objection to such a large grouping. I had to confess to him that it was done with my agreement. As I explained to the Committee on Monday, there are a few occasions in our considerations in Committee where we have agreed to a large grouping, simply because it gives us the opportunity to debate some of the major issues which concerned the Chamber at Second Reading. In considering them, we hope that the Chamber may find itself able to act as the arbiter, as we were asked to do by the noble and learned Lord the Lord Chief Justice.

Although this is a large group of amendments, it deals with a single issue—the membership and operation of the Sentencing Guidelines Council to be established by the Bill. We on these Benches welcome the establishment of the council. However, we have proposed the large number of amendments because we wish to address the concerns expressed about the detail of the Government's proposals.

On listening to the Home Secretary on the radio and television I understand that he is often given to pulling the tail of these Benches. He said that in another place my right honourable friend Mr Letwin agrees with the Government and then these Benches simply go about pulling the Government's plans apart. That is not so. Even though the noble Lord, Lord Borrie, assents, I have to disagree with him. When we agree with the Government in another place, we always clearly point out any reservations. At the moment this Chamber is still able to have time to express those reservations and to give the Government the opportunity fully to persuade us that they are right. So we wait to see.

The group of amendments gives the Committee the opportunity to consider the issue both of the membership of the council and of the role of Parliament in scrutinising the guidelines that it will produce. At this stage I make it clear that all these amendments are probing. I want to consider fully the Government's response before I decide what amendments to bring back on Report and on which to take action.

This is one of the crucial issues in the Bill where it appears that there is a difference of opinion between the executive and the judiciary. We have tried to reflect upon the arguments advanced on both sides of the debate. I refer, in particular, to the arguments put forward by the noble and learned Lord the Lord Chief Justice at Second Reading and in the paper which he deposited in the Library of this House.

When the Bill was first introduced it provided for the council to have only judicial members. In another place the Government introduced amendments to provide for a number of non-judicial members. The judiciary's view on the membership of the council has been made clear by the noble and learned Lord the Lord Chief Justice. At Second Reading, he said: If the council is to carry real clout, as it must if it is to be effective, its membership should be confined to the judiciary".— [Official Report, 16/6/03; col. 574.] I invite the Committee to reflect carefully on the words of the noble and learned Lord, which contrast markedly with the assertion of the then Minister at the then Lord Chancellor's Department that the membership arrangements now in the Bill would: maintain the confidence of the Court of Appeal and the judiciary more widely".—[Official Report, Commons, 20/5/03; col. 915.]

If the council is indeed to be a lasting innovation and have a positive impact on the criminal justice system, as we certainly hope, its recommendations must command the confidence of the judiciary. Equally, they must command the confidence of the public. It is clear that the present arrangements, which provide for no scrutiny of sentencing guidelines, do not command that widespread and full public confidence which is necessary if the criminal justice system as a whole is to command respect.

So our solution before the Committee today tries to take both those factors into account. The Government's proposed membership of the council is wide. We would restore their original position—the Government's position in another place—namely that the council be composed only of sentencers. That is the key concern of the judiciary and, mindful of the objective of ensuring public confidence, the amendments then provide scrutiny of the guidelines by a Joint Committee of both Houses of Parliament. Thus, the public, police, victims’ groups and others involved in the criminal justice system should gain an input into the process through their representatives in Parliament.

In another place, the Government made much of the need for parliamentary scrutiny of the council's proposals, but the Bill provides no statutory mechanism for such scrutiny. My amendments would therefore give statutory backing to the Government's commitment to parliamentary scrutiny given in another place.

On Report in another place, the Government's view on requiring all the guidelines to be subject to the affirmative procedure in Parliament was that: It would be inappropriate to ask Parliament as a whole to debate and vote on the detail of every sentence. There is a huge value in not asking Parliament as a whole to vote on every single guideline".—[Official Report, Commons, 20/5/03; col. 916–7.] We agree. So in drafting the amendments and building on proposals made by the Opposition in another place, we have taken that view into account. A vote in both Houses on every piece of guidance would not occur if our amendments were incorporated in the Bill.

The parliamentary scrutiny procedure proposed in the amendments would operate as follows. The Sentencing Guidelines Council would send its draft guidelines to the Joint Committee of both Houses. The Joint Committee would then have six weeks to consider whether to refer the guidelines back to the council. If it did not decide to refer the guidelines back, at the end of the six-week period, they would come into force through a negative resolution statutory instrument. If the Joint Committee decided to refer the guidelines back to the council, the council would then consider the committee's reasons for doing so when making any amendments to them. It would then resubmit the guidelines to the Joint Committee, which would have a further six weeks to consider and, if necessary, send the guidelines back again. If there was a clear disagreement between the Joint Committee and the Sentencing Guidelines Council and the guidelines were referred back for a third time, Parliament should act as the arbiter.

The amendments provide for the affirmative resolution procedure to apply to the guidelines in such a case. Thus the guidelines would be formulated by sentencers but scrutinised and endorsed by Parliament. We hope that the procedure established by the amendments would strike a balance. The guidelines would be formulated by judges but scrutinised here in both Houses in the form of the Joint Committee. In that way, we have tried to provide a mechanism that will retain the benefits of the Bill's proposal while ensuring that the process will command the confidence of the judiciary, Parliament and the public.

My right honourable friend Mr Oliver Letwin said of the Bill at Third Reading in another place: One of its best elements, although we have not quite agreed on its form, is the process that it seeks to establish for deciding on sentences. We can argue about the precise format of the process for agreeing sentences, but it is common ground between the Government and us that there needs to be a transparent and proper process so that none of us wakes up on a Monday morning and suddenly discovers that the guidelines have been altered, that the Home Secretary and the Lord Chief Justice are locked in mortal combat. Indeed, combat should be avoided on the whole in the proceedings of this nation".—[Official Report, Commons, 20/5/03; col. 970.] My amendments seek to avoid any confrontation and combat; they seek to provide a pragmatic answer to the questions that have been posed in both Houses; and I hope that they achieve a consensus. I beg to move.

Lord Ackner

There is a great risk here of the situation being overcomplicated. Before the Bill was drafted and for the past two or three decades, the Lord Chief Justice, starting with Lord Lane, grouped together cases to be considered by the Court of Appeal, which enabled him and his court to lay down guidelines. Some years ago, I deposited a book of them in the Library. They have never been criticised. They have been there for all to see. The only criticism that has arisen is recently, with regard to burglary, where the Lord Chief Justice was misunderstood—I shall not say misread, but not adequately read—and those criticisms were put right.

So, for decades, the judiciary has dealt with the matter without criticism. Indeed, when one considers the length of time during which the Attorney-General has had the power to intervene if sentences were seriously below what they should have been and how little use he has made of this power, there could be no better indication that the previous position has worked perfectly well.

The judiciary has indicated, through the Lord Chief Justice, that it is not averse to receiving and considering advice from those who want to give it. I think that it was in 1998 or 1999 that the Sentencing Advisory Panel was set up. The panel was and is presided over by a professor; a Member of this House is also a member of the panel; and it has the advantage of a number of lay members.

The panel's function is to put forward its view on guidelines. To obtain the necessary material on which to base a recommendation, it consults any parties that it thinks may be interested and have a contribution to make. In other words, the panel goes out to the public to say, "Tell us your views; we should like to know". There is your transparency. The Court of Appeal is required to have regard to the advice from the panel in laying down future guidelines and if the Court of Appeal is minded itself to take the initiative, it is obliged to consult the panel.

On Monday, I referred to the fact that there are 10 particular classes of cases that have been the subject matter of advice from the panel which has been adopted by the Court of Appeal and guidelines promulgated based on them. The panel was asked for its views on sentences involving the most serious kinds of crimes; in particular, murder. It produced guidelines of which the Court of Appeal was in favour. They were submitted to the Home Office, the Lord Chancellor and the Attorney-General, who suggested small modifications that were incorporated. Last year the guidelines were brought into force by a practice direction issued by the Lord Chief Justice.

A perfectly simple arrangement existed before the legislation whereby the Court of Appeal, after due and proper consultation, laid down by a transparent process guidelines that were in no way criticised. Then comes this legislation, under which the Court of Appeal is no longer to perform the task that it has carried out without criticism for many years. Instead, there is to be a Sentencing Guidelines Council presided over by the Lord Chief Justice. Originally, it was to consist purely of sentencers. The Lord Chief Justice was prepared to accept that arrangement because it would be the Court of Appeal differently constituted that issued its guidelines after all the proper consultations.

Then, to the profound irritation of the Home Secretary, the Judicial Committee of this House decided that a Member of the Cabinet, or a politician of any kind, had no proper input as regards how long a person should stay in prison. It decided that it was a judicial matter to be dealt with by the judges and that, accordingly, the Home Secretary should no longer interfere with the judiciary's advice in murder cases.

We know from debates in this House how unceremoniously the Home Secretary reacted. He showed, I am sad to say, a complete misapprehension of the basics of the rule of law, overlooking entirely the fact that the judges in the House of Lords were performing their obligatory function of applying the rule of law. The Home Secretary fell out with the Lord Chancellor on the matter. The Lord Chancellor, before a committee of this House, made an observation to the effect that it was inappropriate for the Government to cheer when the courts produce a decision of which they approve, and then to attack judges when they produce a decision of which they disapprove. Their function was to go to the Court of Appeal. Indeed, an appeal was pending when the Home Secretary made his intemperate observations. Another case went to the Court of Appeal, which upheld the decision of a judge on a matter, relating to immigration, which particularly got under the Home Secretary's skin.

The Home Office then sought a clearer input in sentencing to be made by Parliament. It therefore seeks to set up the Sentencing Guidelines Council under this legislation. But it now seeks to add laymen to the Sentencing Guidelines Council. It does not propose a majority of laymen—not yet—but the Home Secretary wishes to take the power to vary from time to time, as he thinks it appropriate, the component parts of the council.

The panel to which I referred on Monday last represented to the Minister its dislike of the situation on the grounds that it was being duplicated by laymen on what should have been a judicial committee. The following question arises: why should not any of those highly desirable non-judicial members be on the panel? The panel is the source of advice from the public and can be insulated from Parliament, so the input would be entirely by the panel.

The noble Baroness, Lady Anelay, has not referred to judicial discretion. How is that to be safeguarded? The judges are to lose, or have lost, for practical purposes a champion or semi-champion in the shape of the Lord Chancellor. The Secretary of State for Constitutional Affairs has offered to take on a statutory obligation to look after the judges. But he has not offered to take on what was the declared and accepted obligation of the Lord Chancellor—that safeguarding the judiciary should be his main or essential duty. I would be very surprised if that obligation was acceptable to the Secretary of State.

It seems entirely unconstitutional that the Sentencing Guidelines Council, having taken the advice of the panel and heard all that it should do from the public, should send the matter back to Parliament so that it has the last say on the judicial function of sentencing. Parliament sets up the framework, which is the maximum sentence, and the judge's function, subject to the intervention of the Attorney-General and the Court of Appeal, is to sentence justly according to the facts of a particular case. The suggestion that there should be resubmitted to Parliament the proposed decision of the Sentencing Guidelines Council is an interference with the discretion of the judiciary.

In the past I have referred noble Lords to my experience as one of a team of judges sent by the Council of Europe to Russia, shortly after Russia had freed itself from its Communist bonds, to take part in a sentencing conference with Russian judges. I had met a Russian judge—the chief justice of Russia—at a conference a couple of years before in Kuala Lumpur. He was judge Terribilov and I have little doubt from his size and general manner that he lived up to that name. However, on this occasion they were interested in the European approach to justice. I learnt of the existence of "telephone judges", who, before they embarked on a trial, were rung up by the prosecution and told that their function was to find the person guilty. The appropriate sentence was spelled out.

Strangely enough, about a year later, at a dinner given in the Cavalry Club by the former Attorney-General, Lord Rawlinson, I sat next to the chief Russian prosecutor, with an interpreter sitting behind us. I innocently asked about the "telephone judges" and he said, "Yes, quite right. Having done all the research into a crime, we aren't going to allow the judges to mess about with the proper result"—hence, the "telephone judges".

I am not suggesting that we have reached that stage, but we are moving towards it. In Britain, judges are permitted to make the initial decision. They do not refer it back to Parliament and Parliament does not make the final decision about the right answer. I am sorry to disagree with the noble Baroness, Lady Anelay of St Johns, but it is nonsense. A simple process is being turned upside down largely because of the irritation of the Home Secretary in finding that European jurisprudence, which he took on board with such enthusiasm led by the then Lord Chancellor, has redounded to his dismay.

Accordingly, I will urge the Committee in due course to do as I have done in my amendments—Amendments Nos. 169 and 170. This would remove the non-judicial element from the Sentencing Guidelines Council. In particular, in Amendment No. 173, I would add the following to the end of Clause 165: Nothing in subsection (1) shall fetter the judges' overriding discretion in the individual case to set the sentence he thinks is appropriate. That is the position in a nutshell.

Lord Dholakia

We support much of what the noble Baroness, Lady Anelay, has said, except that we disagree about the membership of the council. Our amendment is designed to probe the Government's intention in relation to widening the representation on the Sentencing Guidelines Council. In the Commons, the Sentencing Guidelines Council was originally to be made up of members of the judiciary. We supported amendments tabled by Graham Allen to include at least one of each of the following people: a police officer, a probation officer, a prison governor, a representative of a victim's organisation, a representative of the business community, a teachers’ representative, lay members of the public one of whom should be over the age of 50 and one under 18, a representative of an ex-offender's institution, a local government crime and disorder partnership representative, a legal professional and a social service representative.

The Government accepted the argument that it would be useful to have non-judicial representation on the council and amended the section accordingly, which we support and for which we are grateful. However, we feel that there may be some gaps in the new subsection (4) that leave out the type of experience that the Home Secretary would be looking for in the non-judiciary members. We would like to ensure that someone on the council has experience in the rehabilitation of offenders rather than just their punishment by imprisonment. Also, the remit of the council appears to be to deal with sentences of all types for all people, but there is no representative present who has dealt with young people in the criminal justice system, who we believe should be dealt with in a different way to adult offenders.

The Government may say that these points have already been covered in the criteria in subsection (4), but it would be useful to have an explanation on record of the type of people the Government have in mind when appointing the non-judicial members of the council.

4.45 p.m.

Viscount Bledisloe

I was not intending to take part in this debate, but I was amazed by what I heard emanating from the Conservative Front Bench. Unless I have misunderstood, the whole thing is absolutely extraordinary. I had thought that the thesis on which the Conservative Front Bench and its followers who are conducting this Bill was that it was all right for Parliament to fix maximum sentences, but the rest must be left to the judiciary. However, we now find the Conservative Front Bench proposing that all guidance on normal sentences should go before a committee of Parliament and, at the end of the day, Parliament should have the overriding power to fix what those norms should be. If Parliament is to fix maxima and norms, why is it so extraordinary for Parliament not to be allowed to fix minima? 1 hate the idea of Parliament being able to fix minima, so I am therefore disgusted at the idea of Parliament having the final say in fixing the guidelines. It seems that those opposite are standing on their heads.

Baroness Anelay of St Johns

It may help the Committee if I briefly explain this point again. Our intent is to provide a reflection of what I said on Second Reading, which was endorsed, as the noble Viscount might recall, by the Lord Chief Justice. We have tried to reflect that and tried to explain that we thought that there was a role for Parliament. We seek to find what that role is. I have made it clear that I will not vote today on any of the amendments in this group, even though I have put my name to some that are also in the name of the noble and learned Lord, Lord Ackner. I have no intention of voting on those today, but I genuinely seek the opinion of the Committee. I am delighted that the noble and learned Lord is, as ever, robust in his views.

Lord Ackner

Does the noble Baroness recall, as I do, that the noble and learned Lord the Lord Chief Justice, in the memorandum deposited in the Library, made the point that, until now, there had never been any suggestion that the judge's decision on the right sentence should be referred to Parliament for its approval? He added that doing so would be out of harmony with the constitutional position, under which the judge fixes the sentence.

Baroness Anelay of St Johns

I ought to answer that question before we go any further. My amendments would not represent a diktat on what a sentence should be; they would leave it to the discretion of the judge in each case to make his decision on the facts of the case. I realise that, in saying that, I sound horribly like the Minister, who seeks to justify the Government's position on the same basis—when push comes to shove in court, the judge will still have the opportunity to make the decision in those cases.

I seek simply to find a way to resolve what appears to be an impasse. The firmness of that impasse is rapidly becoming clear.

Lord Borrie

Before the noble Viscount, Lord Bledisloe, got up, I was going to say that there were two matters on which I agreed with the noble and learned Lord, Lord Ackner. One was the point, which the noble Viscount, Lord Bledisloe, enunciated—I agree with the point—that for Parliament to get involved in approving or amending the statements of the Sentencing Guidelines Council would be a step too far. It is inappropriate for Parliament—the legislature—to go further than to do the kind of thing that appears in Clause 135; namely, setting out the purposes of punishment. To go further than that would be to involve the legislature in something that is not its business. The noble Viscount rightly drew attention to that because of the difficulty of understanding the points made by the noble Baroness.

The other point that the noble and learned Lord, Lord Ackner, made with which I agree entirely is that the ultimate discretion to determine what sentence should be imposed in the individual case must be that of the judge in that case. There is no point in my anticipating what my noble friend the Minister will say, but, as I understood the debate the other day. she said that that existed fundamentally and would continue to do so when the Bill was passed.

I want principally to deal with the narrower point of the membership of the council. Should there be members of the council who are not judicial? There, I am afraid, I disagree with the noble and learned Lord, Lord Ackner, and, therefore—with the utmost respect and, I hope, restraint—with the views of the noble and learned Lord the Lord Chief Justice. On that point, I was encouraged by the noble Baroness, Lady Anelay of St Johns, who said something to the effect, I think, that membership of the council must have the confidence of the judiciary and of the public. The public includes not just the general community of everybody but members of the community who are involved with crime, in particular, such as the police, probation officers and others concerned with sentencing, particularly if the sentences involve imprisonment. The principles of sentencing involve members of the public.

When the Committee discussed generally the principles of sentencing a couple of days ago, I suggested that, properly, there was some similarity or some analogy in composition between the Parole Board, of which I was a member many years ago, and the new council. The Parole Board has always, as I understand it, been composed of judges, representatives of the police, the probation service, criminologists and psychiatrists. Although we are in Committee, I am not concerned here with all the detail, but that list is not dissimilar to what is proposed in Clause 160.

We should bear it in mind that the Parole Board is a decision-making body and that the Sentencing Guidelines Council is an advisory one. For the past 30 years or more, it has been thought appropriate to include non-judges in decisions about the sentences that are actually served by prisoners, after the Parole Board has examined their cases for early release and so on. That is significant. My experience, old though it is, is that the composition of the Parole Board suggests that diverse skills can be useful in the sentencing process.

Our chairman, who was a Member of the House, was Lord Hunt of Llanfair Waterdine, more familiarly known as Lord Hunt of Everest. He was not a judge; he was a military man who became famous, just about 50 years ago, when he got to the top of Mount Everest. The Committee will appreciate that deference to judges was, perhaps, greater 30 years ago than it is now. Lord Hunt was concerned that, with the mixed membership of the Parole Board, the judges should not snaffle the chairmanship of every panel. They have a tendency to want to be the chairman, but Lord Hunt said, "No. We should take it in turns. One day, it might be the psychiatrist; another day, the policeman; and on another occasion, the High Court or circuit judge". That was done because it was appreciated that, otherwise, the judges might be a little too strong-willed and the rest of us too deferential to them.

The essential point that I want to make is that judges have tremendous experience. They are to have the majority on the Sentencing Guidelines Council. It is proposed that a minority should be non-judges, drawn from the various groups in society that have knowledge of crime and punishment. That seems appropriate.

Lord Carlisle of Bucklow

I bow to no one in my admiration of my noble friend Lady Anelay of St Johns for the way in which she has conducted the business on the Bill from the Opposition Front Bench. Not only has there been this Bill but, in the past year, there have been various other Home Office matters, one after the other, and one must be full of admiration for the way in which she has conducted the debates. I am afraid, however, that I must say that, on the point raised by the noble Viscount, Lord Bledisloe, I find myself on his side. The suggestion that, in the end, Parliament should, in some way, influence the sentence that is passed or the sentencing guidelines is one that the Opposition Front Bench might well decide to leave aside.

In the debate, we are concentrating on the composition of the sentencing council. I confess to be being open-minded. I appreciate that the noble and learned Lord the Lord Chief Justice has expressed the view that it should include only members of the judiciary. Obviously, that view must be taken into account. I am concerned at the fact that policing is identified as one of the areas from which the lay members could come.

I listened with interest to the noble Lord, Lord Borrie. He was a distinguished member of the Parole Board. I was never on the board, but I conducted a review of its workings. It is right to say that the Parole Board has been chaired by members of the judiciary and non-members of the judiciary. The noble Viscount, Lord Colville of Culross, was, I think, the exception, as a member of the judiciary who chaired the board. The board has always drawn membership from different aspects of public life and has drawn its strength, in some ways, from the fact that, as the noble Lord, Lord Borrie, said, the chair was always rotated and the views of others as well as the judiciary were listened to on the subject of when a man should be released.

I am sure that I am wrong, but there is one matter that I question. I know that the noble Viscount, Lord Colville, will put me right if I am wrong. I am not sure that it is right to say that the Parole Board always had representation from the police. It certainly had the other bodies mentioned. I cannot remember whether the police were on it or not. I thought not, and I query whether the police are the right people to be on the sentencing council. There are arguments both ways. A strong element of the Parole Board was that it was not totally composed of the judiciary. In fact, it was a minority judicial and a majority from other bodies.

I support the noble and learned Lord, Lord Ackner, on Amendments Nos. 171 and 173 particularly, which are being discussed in this group. Amendment No. 171 leaves out a subsection which specifically states that civil servants should be able to be members of the sentencing council. If there is anyone who should not be a member of the sentencing council, it is the civil servant. On looking at the areas of expertise required, it is really stating that one of them may at any time be a civil servant from the Home Office. With great respect to civil servants in the Home Office, they are not the right people to be on the sentencing council, which is to be set up by the Home Secretary. On that point I agree strongly with the noble and learned Lord, Lord Ackner.

Amendment No. 173 comes back to the debate on Clause 135 about the use of the word "must". Clearly, guidelines should carry great weight with the sentencing authority. However, the Bill states that courts must have regard to the guidelines. So long as those words indicate the necessity to take account of the guidelines or to have regard for the guidelines, I think that the noble and learned Lord, Lord Ackner, is right. It should be made clear that that does not overrule the overall general discretion of the judge to make the appropriate sentence according to all the facts of the case. It is the same argument as we had on Clause 135. It will not benefit anything by repetition. I probably spoke too long on it on Monday anyway. But the noble and learned Lord, Lord Ackner, is right. If every court "must have regard", it must be made clear that "must have regard" does not mean that the guideline is bound to be imposed on every case. There must still be an overriding discretion with the judge who hears all the facts.

5 p.m.

Lord Ackner

Before the noble Lord sits down, would he agree that the analogy of the Parole Board has very much a limited value? As I recall, the Parole Board's function was to evaluate risk. It was concerned about whether a person should obtain his liberty having served the necessary part of the sentence. Is that not a different matter from deciding what is the appropriate just punishment?

Lord Carlisle of Bucklow

I accept that the analogy with the Parole Board is not complete. The noble and learned Lord is right: its main task is to assess risk when it comes to release. I still think that there is a point in what the noble Lord, Lord Borrie, said, which is that on the board there was experience and expertise which came wider than merely judicial. I am open-minded as to the two arguments. I tend to think that it is right probably to have some lay members on the sentencing council. I am not saying that it is an exact analogy.

Viscount Colville of Culross

First, a word on the Parole Board. I was not on the Bench at the time that I was chairman of the Parole Board. It simply would not have been practicable to do both at the same time. But I support the noble Lord, Lord Borrie, about police officers. I do not think that we had any serving police officers during the time that I was concerned with the Parole Board, but we certainly had some very distinguished retired ones. The great advantage of the Parole Board and, indeed, perhaps I may say, another organisation that I chaired before that—the Mental Health Act Commission—was that it was multi-disciplinary. The disciplines contributed greatly to each other. I am not against multi-disciplinary organisations of this sort. I would reinforce the possibility that an experienced policeman might be a very valuable member.

That is not what I intended to address. The problem that I see —raised by the noble Baroness, Lady Anelay— in the method of ping-pong between the council and the Select Committee of Parliament is as follows. At present, we have a series of guideline decisions which come from the Court of Appeal. They are set out at the beginning of a passage referring to a particular offence in a large encyclopaedia which gives guidance on sentencing. They, of course, can be revised from time to time, as they are. That role of the Court of Appeal is to be assumed by the council and the panel will advise it.

Where I see difficulty in the noble Baroness's proposition is this: I cannot believe that the council will be able to address guidelines for all the offences which come before the Crown Court on indictment. There are hundreds of them. If one looks at the present encyclopaedia, it becomes immediately apparent that there is a very large area of criminal law on which there are no guidelines at all. It will take quite a long time for this to be put right, if ever. It may be that there are some kinds of offences which are so rare or so recondite that it is not worthwhile the council dealing with them.

If that is to be the case, Parliament will have no input because there will not be any guidelines to comment on. If one wants to have a wider input into the guidelines process, what seems to be much more important is, first, the role set out for the panel, which I think exists already. It can put forward propositions to the council about a particular type of offence or range of offences where guidelines are needed and perhaps do not yet exist. Secondly, there is. an input from Parliament in that there will be the annual report. That comes later. If the annual report is debated in either House, presumably it is possible for Parliament to say, first, that it does not like the guidelines on rape or whatever, and, secondly, that in view of current offences being committed in a particular field, it is high time that the council panel and the council apply their minds to laying down guidelines for that range of offences.

That is much more flexible and realistic than expecting Parliament to take part on a regular basis, not only as regards the original guidelines, but presumably also as regards the revisions provided for in this part of the Bill. Therefore, Parliament will have its say at the end of each year when the report comes before it. There will be an opportunity for a large range of people to suggest to the council in what areas guidelines need now to be considered and to be laid down. That will be much more satisfactory than a very complicated parliamentary procedure whereby, in the end, Parliament may have the final word, at any rate for the moment. But I cannot believe that it will necessarily persist for ever because there will be further suggestions from other people— from the panel or from the public—that what has finally been established on that occasion is, in fact, wrong and needs to be revised.

So I would suggest to the noble Baroness, Lady Anelay, that what she has put forward is excessively complicated, is unlikely to cover the field and really could be better achieved by other means.

5.15 p.m.

Baroness Scotland of Asthal

I was so fascinated by the debate that I almost forgot to stand. I thank all noble Lords who have participated. This debate has clearly demonstrated the breadth of the issues with which we now have to deal. It is right that the Government themselves started from the position that the composition of the council should be restricted to judicial members only. Noble Lords will know, not least from having had the advantage of reading the Hansard reports of the debates held in another place, just how that debate expanded, thickened and ultimately arrived at the point at which the Government were content to bring forward their own amendment. It took up the thrust of what had been said in relation to this matter by my honourable friend Graham Allen, together with a number of other Members.

It was right for the noble Lord, Lord Dholakia, to outline the genesis of how we have come to arrive at this position. Further, there is a balance to be struck between what has been said by the noble Baroness, Lady Anelay, about the changes she wishes to see and that which has been said by a number of other noble Lords. I see clearly the force of the comments made by the noble Viscount, Lord Bledisloe, supported so eloquently by the noble Lord, Lord Carlile, and my noble friend Lord Borrie. I do not think that it is necessary for me to underline what appeared to be inconsistencies in the arguments put by the noble Baroness. However, I add my compliments to the noble Baroness for so robustly putting forward her case, not only on this matter but also on other issues in relation to this and other Bills on which she and I have both travailed.

This group of amendments has two distinct elements. The first seeks to remove non-judicial members from the council and to make consequential amendments, save for one amendment which seeks to increase the range of experience which non-judicial members would bring to the council. The second group seeks to remove the final decision regarding a guideline from the council and to give it to the Lord Chancellor, acting on decisions of a Joint Committee of Parliament.

I have already outlined the origins of these arrangements. However, it is right to point out that the balance remains very much in favour of the judicial members. When looking at these provisions, I am sure that the noble and learned Lord, Lord Ackner, will have recognised that they provide for a judicial majority on the council: the Lord Chief Justice as chairman with seven other judicial members drawn from each tier of the court, as well as five non-judicial members. Together they will cover the whole spectrum of a criminal case from detection of the offender to completion of the sentence. That reflects very much the fact that sentencing does not take place in isolation and is part of the process of dealing effectively with crime—a very important part, but still a part.

It is expected that 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, important though quite clearly that is, but also of practitioners, of the wider public and of Parliament.

This is no mean task. The council will draw on the advice of the Sentencing Advisory Panel, which has earned very considerable standing and respect since it was created in 1999. Indeed, a number of noble Lords referred to the quality and nature of that advice. The panel will continue to draw its membership from a wide variety of backgrounds and it has demonstrated that it can undertake the extensive thought and consultation that is necessary.

The seventh report of the Constitution Committee of your Lordships' House drew attention to a number of concerns, without necessarily endorsing them. The committee recorded the concerns of the Lord Chief Justice and two of our most eminent academic lawyers. Stated simply, those concerns highlight the position of guidelines between legislation and individual decisions and the questions that that raises about whether the council should be regarded as a judicial or a quasi-judicial body.

The framework that Parliament seeks to provide is simply the skeleton. It establishes the key principles, defines the offences, prescribes maximum punishments and sets out when certain types of sentence are available. Guidelines provide the skin on that skeleton, filling the gaps and protecting the vital organs that give life to the body. But it is the judiciary who are the living organs that make the whole thing work. The noble Viscount, Lord Colville of Culross, was right to highlight the contrast between the different functions and what can be brought to the process by enriching it with the expertise brought to it by others.

I again wish to make it very clear that the new framework strongly depends on the independence, expertise and acuity of our judiciary. Turning again to the framework, contrary to what has been said elsewhere, our judges—be they lay or professional— are being asked to do an even more difficult and stretching job. That is because we hope to give them the tools to enable them to do that which many of them have wanted to do for a long time. Not only will they deal with the single offence that comes before them, they will deal also with the causes of offending.

I know that a number of noble Lords will have participated in that process and will have known the frustration felt when they were not able to do that which they would have liked to do in order to break the cycle of offending behaviour. The framework to be given to the judiciary—whether they caution, caution with conditions or without conditions; whether they fine and make that fine conditional upon other conditions; whether they do or do not order therapy; whether they order an immediate custodial sentence or an intermediate sentence; whether they refer—will now make available all those options.

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

However, the range of legitimate interest in the level of sentencing and the approach to different offences is much wider. All of society has an interest in sentencing. The criminal law is the state acting on behalf of society as a whole, and the Government's proposal enables the wider interest to be brought in while still leaving the final decision with a body of very high calibre—and with a judicial majority. I want to emphasise that the expanding nature of the role is going to be reflected in the expanding membership of the council.

The council will commission advice from the Sentencing Advisory Panel, which has a wide membership and consults actively and even more widely. After the council has received the advice of the panel, it will also consult. Although this can be as widely as the council wishes, it is primarily for the purpose of taking the views of Parliament and of Ministers. We do not wish to see Parliament or Ministers and the judiciary at loggerheads. That period of consultation will allow for a considered contribution from every part of Parliament, but still the final decision will rest with the council which, again, is to have a judicial majority in its membership.

I know that specific objection has been made to the possibility that a civil servant should be a member of the council. That issue was raised by the noble Lord, Lord Carlile, and echoed by the noble and learned Lord, Lord Ackner. The Government expect the route to appointment to the council to be a mixture for both the judicial and the non-judicial members. Some will be by virtue of the office held, and some after a form of open competition.

The importance of doing so is plain. For the non-judicial members, the current thinking is that two of the five members will be appointed by virtue of the office they hold, and three after open competition. The two ex officio members are likely to be the Director of Public Prosecutions, who will bring experience of criminal prosecution, and the Commissioner for Correctional Services, who will bring experience of sentencing policy and the administration of sentences. Both are civil servants. But they will be appointed to an independent body, established not only as a non-departmental public body—with the usual obligation to adhere to Nolan standards—but in circumstances where the grounds on which they can be removed from the council are restricted and appear on the face of the Bill. Making independent decisions is an essential part of the role of the Director of Public Prosecutions.

Lord Clinton-Davis

Is there not a case for specifying in the Bill the civil servants who are not eligible? It has been argued in the debate so far that certain civil servants would not be appropriate for consideration for the panel and the point made by the Minister is also sensible and highly regarded. What worries many people, not only in the House but elsewhere, is that any civil servants will be eligible.

Baroness Scotland of Asthal

I understand the force of what my noble friend says in relation to that issue. We shall certainly look at the matter. However, we have already considered the issue to the extent of whether it would be proper to restrict those appointments to the offices of the Director of Public Prosecutions and the Commissioner for Correctional Services, particularly bearing in mind, as my noble friend will know, that those offices may change over time. I had hoped to give the Committee an indication of the way in which we propose to exercise and appoint in the hope that that would clarify the way we are thinking. I shall certainly take away what my noble friend has said.

Lord Carlisle of Bucklow

It is fair to say that where the Bill refers to "civil servants" one does not immediately think of the Director of Public Prosecutions. Those who have held that role have always been looked upon as independent members of the Bar or solicitors, not as civil servants. If that is what the Government intend, would it not be better to specify that the Director of Public Prosecutions should be one of the people on the sentencing council rather than by covering the issue with the words "any civil servant"?

Baroness Scotland of Asthal

I was describing the difficulty. I understand what the noble Lord says. I have already indicated to my noble friend Lord Borrie that it is a matter I shall be happy to take away and think about. However, the reality is that technically he is a civil servant—although the noble and learned Lord is absolutely right to say that none of us has ever thought of the Director of Public Prosecutions as a civil servant. Indeed, the role that the Commissioner for Correctional Services currently plays is similarly looked upon as being very independent. He serves within a separate body and performs a very independent function.

Lord Mayhew of Twysden

Does not the Commissioner for Correctional Services come from a background of a Home Office civil servant, a Home Office official, by way of the Director of the Prison Service? That is quite separate from the career of a typical Director of Public Prosecutions, is it not?

Baroness Scotland of Asthal

It depends on whether noble Lords consider that that is an advantage or a disadvantage. If one has an intimate knowledge of the structure and the running of prisons and so on, that brings with it a certain degree of expertise in how to inform policy on the use to which prisons can and should be put. It thickens the soup. It also brings a degree of independence because it relates not to mainstream Home Office business but to a body which carries out its functions separate and apart even though it comes under the responsibility of the Home Secretary.

I understand the concern about mainstream civil servants. There is always the question of how the individual will balance his obligations to Ministers with his obligations as a member of an independent body. Even if he can, will the wider perception still be that he is somehow the tool of the Home Secretary?

In his response to the Select Committee of the House referred to earlier, Dr Thomas speculated that the driving force behind the proposal to create a sentencing guidelines council is a desire for the Home Secretary to exercise greater control over sentencing. That is very much the thrust of what the noble and learned Lord, Lord Ackner, sought to say about my right honourable friend the Home Secretary. Dr Thomas pointed to the involvement of the Home Secretary in appointing members; the power of the Home Secretary to request the council to formulate a guideline; and the obligation of the council to consult the Home Secretary on a draft guideline.

The first two of those observations simply follow on from the equivalent provisions that already exist in relation to the Sentencing Advisory Panel. The third and most significant is actually designed to reinforce the proper independence of the judiciary. It recognises the responsibility of the Home Secretary for sentencing policy and provides a process for positive and helpful dialogue before guidelines are made, but it again leaves the final decision with the council, which will have a judicial majority.

If appointed, the Commissioner for Correctional Services will bring unique experience of what happens within the correctional services, coupled with wide understanding of sentencing policy issues. As a normal part of his daily responsibilities, such a person will advise Ministers with complete integrity. We can expect such a person to act independently and with integrity as a member of an independent council. We are talking of people of the highest calibre, working in an open environment where it is very unlikely that progress will be made unless there is consensus.

The council will be independent; its members will be independent; there will be no infringement of the principle of the separation of powers.

I agree with those who believe that the council will be enhanced by the membership of others who have different skills. We need to remember the context in which we are discussing sentencing. As never before, there is a good deal of public disquiet about the criminal justice system. We know that the recorded levels of confidence in the system and in sentencing is low. Those of us who know a number of judges and magistrates are well aware how able and committed they are and how difficult is the job that they carry out on a day-to-day basis in our courts across the country. However, the perception does not always follow the reality and we need to build a system in which people feel a greater degree of confidence and empathy.

The next group of amendments raises the important issue of who should have the final responsibility for agreeing the content of the sentencing guidance to which a court must have regard when fixing a sentence. This function is currently performed, as the noble and learned Lord, Lord Ackner, said, by the Court of Appeal (Criminal Division). The Bill provides that it will be undertaken by the Sentencing Guidelines Council, which will have a judicial majority. If adopted, the effect of the amendments would be to take the power away from the council and, in effect, give it to Parliament, operating through a Joint Committee of both Houses. I believe that, on balance, the debate today has indicated that that would be outwith the desire of the Committee.

There is no question that Parliament will have every opportunity to contribute where it wishes, bearing in mind that there are well over 2,000 offences that are likely to be susceptible to guidelines in one form or another. I do not anticipate that Parliament will want to give the same level of consideration to each. The noble Viscount, Lord Colville, was right when he said that the Court of Appeal has concentrated on specific matters. There are offences which have never been subject to guidelines, and there may in the future be offences which will follow that pattern. However, as the noble Viscount also rightly says, there is a plethora of offences which would benefit from guidelines.

The council will have the opportunity to look much more broadly than the Court of Appeal Criminal Division has hitherto. One must not forget that members of the Court of Appeal, extraordinary as they all may be, are still mortal; they do, like Ministers, occasionally need sleep, though not a great deal; and there is a lot of work for them to undertake.

5.30 p.m.

Viscount Colville of Culross

May I interpose for one moment? The other difficulty is that the Court of Appeal can issue guidelines only if it has a group of suitable cases on appeal before it. If there are no cases on a particular subject, it never gets the opportunity to produce guidelines.

Baroness Scotland of Asthal

The noble Viscount is absolutely right. The council will be able to undertake a proper review of those issues which need and would benefit from guidelines but have hitherto not been subject to guidelines.

Viscount Bledisloe

When the noble Baroness says that members of the Court of Appeal need sleep, is she suggesting that that is when they are sitting or at other times?

Baroness Scotland of Asthal

I think they would benefit from the odd respite at night. I empathise with them because I, too, and, I think, the noble Baroness, deeply desire such an opportunity.

Lord Ackner

May I intervene once more? Reference has been made to the difficulty the Court of Appeal may be in because of the absence of cases that can be brought before it in order to enunciate guidelines. That does not exist any longer because the panel is there to initiate any guidelines that it thinks ought to be considered. It then consults widely outside and produces the material to the Court of Appeal.

Baroness Scotland of Asthal

The noble and learned Lord, Lord Ackner, is right. He also knows that the purpose of the council is to take the role that is currently being adopted by the Court of Appeal, which the Lord Chief Justice accepted as a right and proper thing to do. The issue about which we are not in agreement is whether the composition of the council should be more broadly based than that of the judicial committee. If I may respectfully say so, we are not necessarily disagreeing that there has to be and should be a council. The import of these amendments is the composition of that council and whether non-judicial members should be a part of it.

The breadth of the people involved suggested by the noble Lord, Lord Dholakia, would make the membership far too large to be effective. Under these proposals, the council will have a chairman and 12 members. This seems a very effective size, considering the task being undertaken.

There is a further amendment that, while accepting the number of non-judicial members, seeks to increase the range of experience that those five members bring so that they also bring experience of rehabilitation of offenders and of young offenders. These are two key areas but they are already included within the fifth area of experience of sentencing policy and the administration of sentences. At the moment, we have five areas of experience and five non-judicial members. It would be dangerous to expand those areas too much and not wise to include these particular categories, which are narrower than those presently provided.

The council will have an obligation to take into account a wide range of issues and will have to have access to a great deal of information, but it is not necessary to specify that these two areas are included. We of course have the benefit of the advisory panel which has a very broad spectrum of expertise into which the council will be able to dip. Indeed, it can make specific requests and inquiries of the panel to provide that information if it finds that that is outside its experience or knowledge. It is an opportunity to pull those two bodies together.

I know that some have said that having the panel means there does not need to be any lay membership on the council. Similarly, it is argued that having a lay membership on the council means you can get rid of the panel. We believe that you benefit from both. The panel can concentrate and hone in on the wider research and other issues that will better inform the council, which will then, because its membership is broader, be able to evaluate that evidence and the information that it is given and come to an appropriate consensual position on how to deal with matters.

The points raised by the noble Lord, Lord Carlisle, and the noble Viscount, Lord Colville, have, if I may respectfully say so, been very well made. I of course understand the concern and fear expressed by the noble and learned Lord, Lord Ackner. I also understand why he should suggest that in some way these provisions have sprung out of an irritation created by my right honourable friend the Home Secretary. However, that is just not right. The starting point, as the noble and learned Lord knows, was a council with no lay element. That was our preferred option at the inception. But what has happened, as the Bill has gone through the other place and has now come to this place, is that the Government have listened to the arguments that have been very forcefully made, accepted that they are sound and sought to incorporate that thinking into the way in which we framed the new provisions.

We are trying to create a system which is even more fit for purpose than the one we have. It is always tempting to say that we are already in the best of all possible worlds and no further improvement is needed or necessary. We know that that is not true and are attempting to craft something that will enhance the opportunity we all have to get this system right, so we have a system of which we can all be proud.

I do not resile for a moment from saying that the system we are seeking to pursue in the Bill will inure to the benefit of the citizens, be they victims, witnesses or defendants. We want fairness, we want clarity and we want a system which is capable of being applied with parity right across the piece.

With those comments, I invite the noble Baroness not to press any of her amendments and to do just what she said—to probe and, I hope, not to return.

Baroness Anelay of St Johns

I can satisfy the Minister on one count but not the other. As I explained earlier, my amendments are an attempt to achieve some form of consensus between the two paths that we have been following. One argues that the current system by which sentencing guidelines are provided is working very well. The noble and learned Lord, Lord Ackner, put his case, as ever, superbly. He is known, from his days at the Bar, as the master of the devastating aside, and his speeches are just as devastating as any of his asides. I respect his views; he quite rightly says that the model I have put forward is over-complicated. I appreciated that; it was my first attempt to provoke some form of debate and, by golly, it certainly provoked a debate.

The noble and learned Lord, Lord Ackner, maintains that the status quo should remain because it is working perfectly well. However, the noble Baroness, Lady Scotland, commented that she felt that public opinion was at an all-time low and that one needed to respond to that. I am trying to find some way of doing that without adopting the Government's rather extreme course.

I perfectly understand the views of my noble friend Lord Carlisle of Bucklow. He has remained true to his principles throughout his career, both as a Minister and in this Chamber. He has particular objections to mandatory sentences and the interference of the executive in the true province of the judiciary. I would never expect him to change his principles, he would never let me down on that.

I listened carefully to the noble Viscount, Lord Colville of Culross. I appreciate exactly what he says about the sheer number of offences, and the problem that for some of them there are no guidelines, nor are there likely to be. That is absolutely right—I agree with him. My difficulty with the Government's proposals is that they provide us with a model whose virtues the Minister has extolled today, while in the same Bill the Government do not put to the test the guidelines on murder as they have in later clauses. That undermines the Government's own professed confidence in the system with the Sentencing Guidelines Council.

The noble Viscount, Lord Colville of Culross, is right to direct me to look more closely before Report at the role of the Sentencing Advisory Panel and the annual report to Parliament. I shall do exactly that so that I may come back with something more flexible and realistic, which is what he asked for.

I shall consider all views. I shall have to return on Report with other amendments, but not with these—I can given that assurance to the Minister These amendments will not see the light of day again, although they have served their purpose. I repeat the commitment that I gave the Chamber, that because my amendments are probing, even when I added my name to amendments tabled by the noble and learned Lord, Lord Ackner, I would not support any Divisions today on those amendments. I genuinely intend to take on board everything that has been said and to return with something more workable on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 169 to 172B not moved.]

Clause 160 agreed to.

Clause 161 [Sentencing Guidelines Council: supplementary provisions]:

[Amendments Nos. 172C to 172K not moved.]

Clause 161 agreed to.

Clause 162 agreed to.

Clause 163 [Guidelines relating to sentencing and allocation]:

[Amendment No. 172L not moved.]

5.45 p.m.

Lord Carlile of Berriew moved Amendment No. 172LA: Page 97, line 43, at end insert— ( ) the overriding principle to reserve the use of custody for dangerous and sexual and violent offenders and seriously persistent repeat offenders.

The noble Lord said: We on these Benches welcome the proposal to establish the Sentencing Guidelines Council. We hope that it will hope to achieve a more consistent approach to sentencing, although we regard consistency in sentencing as something quite different from uniformity in sentencing.

I noted in the previous debate that there was not a single mention of regional variations in the country. This might represent an opportunity to express the hope that, although policy will become more consistent, there will remain the potential for sentences not to be uniform but to vary, not only on the basis of individual considerations but because of regional considerations.

I give the obvious example of mayhem on the seafront in some north Wales seaside resort. I choose north Wales only because I live in that part of the country and I should not wish to pick on anyone else. From time to time, I have also been involved in mayhem on the seafront at Rhyl, albeit in a professional role.

We are very concerned about public confidence in sentencing policy. We believe that public confidence could be seriously undermined if sentences cannot be carried out effectively because the prison system is overcrowded and is merely an uncivilised cupboard into which people are put and if the correctional services in the community are overburdened so that they cannot carry out the schemes that they have devised, which, when they work, are proving to be extremely effective.

We regard the "have regard" principles that are set out in the clause as crucial in determining the nature of the remit given to the Sentencing Guidelines Council and the focus of the work that it will do. Amendment No. 172LA is merely an attempt to enshrine in legislation something that we on these Benches regard as valuable and which was tucked away in the Explanatory Notes published on 21st May. I remind Members of the Committee of paragraph 791, which I am sure is in the forefront of your minds but merits a specific reminder. The note says: The provisions will be implemented as part of a strategy which will aim to ensure that custody is reserved for dangerous sexual and violent offenders and seriously persistent repeat offenders, and that the benefits of community supervision are made available for more offenders".

I accept that in this part of the Bill, if one takes all the provisions together, one can extract from the porridge—or the dough, I might say—the plum that is summarised in those words. However, we would be much more content if those words, with which we wholeheartedly agree as a statement of policy, were enshrined in the Bill. Hence Amendment No. 172LA.

We agree with the Prison Reform Trust that a key function of the Sentencing Guidelines Council is to oversee the thresholds that would govern the use of community and custodial sentences, and in particular to ensure that prison is used as a last resort. There have been some very unsuccessful attempts to legislate for the use of prison as a last resort. Some of us, both in practice and, in my case, as a part-time judge, had to cope with those in the early part of the 1990s. They were not terribly successful and produced some nonsensical results.

We believe that the Bill could be improved by not only Amendment No. 172LA but Amendment No. 172LB, which would ensure explicit consistency between the Sentencing Guidelines Council and the legislative purposes of this part of the Bill.

We also believe that the monitoring and reporting roles of the council should be strengthened by the addition of a subsection, additional to Clause 163(6), which we have sought to include in Amendment No. 172LD. That would include that proper attention was given to the financial implications of decisions. It would be consistent, too, with recommendation 10 of the Halliday report, which said: The proposed new guidelines should look for consistency of approach, rather than uniform outcomes, and recognise justifiable disparity, for example in cases where the offender has dependent young children".

We believe, too, that that approach should be included in the council's framework for guidance in the "have regard to" provisions, as I have called them.

Finally, I turn to Amendment No. 172LC. I recognise that at first sight the text may seem a little obscure, so perhaps I had better explain in a very few sentences the aim of the amendment. This amendment seeks to ensure that the council and the panel have a positive obligation to ensure that there is not inadvertent discriminatory practice in sentencing. Perhaps I can best deal with this by example from my own experience of the legal profession.

I am now old enough to look back over legal practice for more than 30 years. When I first started, in the last year of the assize courts and quarter sessions, I remember being shocked and appalled—as a very young barrister who had just emerged from university in the late 1960s—by going to court and hearing those older and wiser than myself representing people who were sentenced—I well recall, on more than one occasion—to 12 years’ imprisonment for homosexual acts which are now not crimes at all, and which in cities such as London and under anti-discrimination laws are rightly regarded as part of normal social behaviour. It was not always so.

If one analyses what the courts used to do in the savage sentencing of otherwise perfectly respectable people for what were regarded then as moral rather than criminally reprehensible acts, one sees a degree of discrimination. I am sure that the judges did not think that they were discriminating. If they had been told that they were discriminating they would have denied it stoutly and defended themselves with the considerable skill at their disposal. I use that example as an illustration of how society's expectations and behaviour change sometimes more rapidly than we expect. What is normal or at least acceptable in one decade can become unacceptable in another and vice versa.

As a contradistinction to my example of sexual offences at the very beginning of the 1970s, I would cite the rightly hardening attitudes, socially and in the courts, towards domestic violence and sexual offences such as rape. We believe that a positive obligation on the face of the legislation would ensure that the tendency towards unconscious discrimination or discriminatory practice was monitored regularly as part of the obligations of the statutory bodies rather than as currently happens. What happens currently is that sentencing practice, after a number of years, suddenly has to catch up with changes in social dynamics and expectations which have happened in the previous years. The result can be injustice to individuals.

A few moments ago we had some very interesting discussions, introduced in particular by the noble and learned Lord, Lord Ackner. During those arguments, perhaps everyone slightly lost sight of the fact that at the end of the sentencing process there is a man or woman standing in the dock facing a man or a woman sitting on the Bench who is dealing with the human situation that has brought them face to face in that very emotional and difficult environment. We believe that not by prescription but by setting out a little more in the "have regard to" provisions we would improve the performance of the Sentencing Guidelines Council and make sentencing policy more coherent. I beg to move.

The Deputy Chairman of Committees (Lord Tordoff):

Amendment proposed—

Lord Renton

I must say—

The Deputy Chairman of Committees

Amendment proposed: page 97, line 43, at the end insert the words as printed on the Marshalled List.

Lord Renton

I was hoping to intervene before the noble Lord, Lord Carlile, sat down.

The Deputy Chairman of Committees

With respect to the noble Lord, Lord Renton, it is difficult to intervene when there is not a Motion before the Committee on which to intervene. That is why I pressed forward. There is now a Motion before the Committee.

Lord Renton

It is kind of the noble Lord to give that explanation. I would not in any sense blame him.

Amendment No. 172LA limits the use of custody and reserves it for, dangerous and sexual and violent offenders"— yes, of course many of those deserve custody— and seriously persistent repeat offenders". Well, that is an unusual expression.

There are serious cases of fraud and burglary. Vast sums are obtained by fraud. Huge numbers of valuable goods are obtained by burglary. Surely custody would have to be imposed for a first offender if the offence was very serious. Therefore, I fear that there is a very serious limitation on the use of Amendment No. 172LA. Indeed, it is such a serious limitation that we could not accept it.

Lord Carlisle of Bucklow

Perhaps I may say to my noble namesake that I do not think that he could have been sitting in his place yesterday when, as I understood it, the noble Lord, Lord Goodhart, publicly withdrew the words in this proposed subsection because of the very point that the noble Lord, Lord Renton, has made. I thought that the noble Lord implied that we would not see those words again. He accepted that they clearly did not cover many other serious forms of crime.

Viscount Bledisloe

I share the view of the previous two speakers that Amendment No. 172LA is far too restrictive. Is the noble Lord really suggesting that one cannot impose custody on the perpetrator of a major fraud or on a spy? I might remind him that Mr Blake received 42 years. Under this amendment, he would have to be given community service. Is that really what the noble Lord intends? Does he really intend that those who commit perjury or conspiracy to pervert the course of justice should be fined? Does he really intend that major drug smugglers shall walk free? Obviously the people mentioned here are very suitable candidates for custody, but surely it cannot be right to say that they are the only suitable candidates for custody.

Despite the noble Lord's exposition of Amendment No. 172LC, I do not quite understand it. In particular, I do not understand how sentencing policy can take into account the effect of investigation and proceeding. Investigation and proceeding have happened. Unless he is suggesting, as in the homosexual case, that the sentencer should say, "There is nothing wrong with this; I shall not punish you. Therefore it is a waste of time for the police to investigate or proceed against other homosexuals", I do not see how the impact of investigation and proceeding—which has happened by the time the sentencing stage is reached—can be expected to be taken into account in sentencing. No doubt the noble Lord can explain that. However, I would undoubtedly oppose Amendment No. 172LA.

Viscount Colville of Culross

On Amendment No. 172LC, may I suggest to the noble Lord, Lord Carlile, that perhaps what we want is not something as general as he has put forward. I understand what he is trying to achieve. However, what is really useful to the sentencer is a guideline decision, or the advice from the council in future, which says what, in the circumstances of that particular offence, are the mitigating factors and the aggravating factors. Then one can start to identify in the course of hearing the evidence the main issues that will eventually lead to a conviction and sentence. That is done at the moment and it is invaluable, but I do not think that it would necessarily be achieved by the generality of what is contained in Amendment No 172LC.

6 p.m.

Lord Carlile of Berriew

Having spent at least one holiday travelling around Italy looking at some of the wonderful paintings of St Sebastian, I know exactly how he felt after the three pronged attack which I received from three noble Lords, including my noble namesake, all of whom I greatly respect. I am extremely grateful for the assistance that I was given by the noble Viscount a few moments ago.

The answer to the three questions I was asked is straightforward: No. It was not, of course, intended to create a situation in which George Blake could not be sent to prison. It was not intended to create a situation in which burglars could not be sent to prison. However, it has to be said—I am sure that Members of the Committee who have spoken in the past few minutes share my experience that most people who commit serious burglary offences are persistent repeat offenders—that it is rare for a burglar to graduate to the large-scale antiques burglary of one of your Lordships' stately homes, for example, without going through the university of crime.

I say to the noble Viscount, Lord Bledisloe, that so far as perjury, and particularly perverting the course of justice, are concerned, far too many people are sent to prison unnecessarily. As judges always say—I have said it myself—although those offences go to the root of the criminal justice system one has to ask the fairly sensible question whether someone who tells a lie about who was driving a motor car at the time of a breathalyser offence but who otherwise has an exemplary private and public record really needs to be sent to prison, or whether he or she could not be condignly punished in the community, probably most of all through the shame of conviction, which constitutes a great punishment for such people. Therefore, I do not apologise for seeking to keep that category of people out of prison.

Amendment No. 172LA contains an overriding principle. It is not intended to be a command structure. Possibly the wording could be improved. However, I hope that the purpose behind Amendment No. 172LA is one that we all share. Prisons are overcrowded. They are constantly criticised by Her Majesty's entirely independent inspector of the Prison Service. In many cases they do very little to enable offenders to emerge from prison likely or able to lead law-abiding lives. We believe that the deficiencies in the present system should be tackled in some way in the legislation. I do not claim perfection for the amendment's wording and nor do those who drafted it. However, like my noble friends, I claim that the purpose of the amendments is useful and ought to be considered by the Government.

Baroness Scotland of Asthal

I thank the noble Lords, Lord Carlile of Berriew, Lord Carlisle of Bucklow and Lord Renton, for saving me the burden of dealing with many of these amendments. I say to the noble Lord, Lord Carlile of Berriew, that I understand why he wants these issues on the face of the Bill.

These amendments seek to add to the matters to which the council must have regard when framing or revising sentencing or allocation guidelines. Although each of the issues raised is both important and one that the council will expect to consider, it is not necessary to include that degree of detail on the face of the statute.

We want the council to do all the things that the noble Lord has just outlined. It will have the skill and the knowledge to address those issues. I am sure that it will take into account precisely the role that the noble Lord mentioned. The council will be able to determine the proper use of custody in relation to offences and what kind of offending history needs to be borne in mind. The noble Viscount, Lord Colville, said that what most assists sentencers is to know the aggravating and mitigating factors and what they have to take into account. That is precisely what we intend.

In respect of the sentencing guidelines, Amendment No. 172LA emphasises the importance of proper use of custody. The council will take into account the cost of different sentences, their effectiveness and the need to promote public confidence and it is better to leave the obligation at this level of detail and let the council discharge that duty.

Amendment No. 172LB seeks to require the council to have regard to other sentencing principles in the Bill. The guidelines will be for those passing sentence who must abide by the statutory principles which we mentioned when discussing Clause 135. Therefore, any guidelines must follow those principles and so there is no need for this provision.

Amendment No. 172LC emphasises the importance of the council having regard to potentially discriminatory actions—again the need for the council to have regard to confidence in the system will include this and it is not necessary to prescribe this level of detail.

Amendment No. 172LD refers to allocation guidelines which will assist magistrates’ courts in determining what either way cases to send to the Crown Court for trial. The council will take into account all relevant issues. As well as the consultation undertaken by the Sentencing Advisory Panel, Parliament will contribute to the council's deliberations and there is no need to specify a particular factor such as this. Even if we thought that there might be such a need, the noble Lord's namesake, the noble Lord, Lord Carlisle of Bucklow, uttered strong words on verbosity on the previous occasion that we discussed the Bill. I believe that these amendments might well fall foul of his strictures. I for one took them very much to heart.

Lord Carlile of Berriew

I am grateful for the Minister's response. I certainly exclude her from the St Sebastian category.

We are reassured to an extent by the Minister's expectation of what the council will take into account. Of course, the proof of the pudding will be in the eating. We have reasonable confidence in the membership of the council to take those matters into account, certainly as it will be constituted initially. We are disappointed that the have regard provisions are not more extensive. I say frankly that we would have preferred them to be more extensive. We believe that it would have done no harm to the integrity or content of the Bill, but in the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 172LB to 172N not moved.]

[Amendment No. 172P had been withdrawn from the Marshalled List.]

Clause 163 agreed to.

Clause 164 agreed to.

Clause 165 [Duty of court to have regard to sentencing guidelines]:

[Amendments Nos. 173 to 173B not moved.]

Clause 165 agreed to. Clause 166 agreed to.

Clause 167 [Duty to give reasons for, and explain effect of, sentence]:

Baroness Anelay of St Johns moved Amendment No. 173C: Page 99, line 21, leave out "to the offender" and insert "in open court

The noble Baroness said: In moving Amendment No. 173C, I wish to speak also to Amendments Nos. 173D, 173E and 173F, all of which stand in my name.

Clause 167 would place a statutory duty on sentencers to explain the reasons for deciding to pass a particular sentence and also the practical effect of the sentence on the offender. The amendments relate to the second of these duties, which would effectively replace the similar duty contained in the consolidated criminal practice direction issued by the noble and learned Lord the Lord Chief Justice and first introduced by the noble and learned Lord's predecessor in 1998.

Amendment No. 173C would require the explanation of the practical effect of the sentence to be made in open court. I have tabled it to highlight what appears to be a defect in the present system and ensure that it is not replicated under the new arrangements in the Bill. As I understand the position at present, most sentencers make a full explanation of the effect in open court, as required by the practice direction. However, I am told that some simply say words to the effect that defence counsel will explain the sentence to the offender in the cells after he or she has been taken down.

The latter approach clearly does not reflect the intention behind the duty, which is that the offender, the victim if present in court, and the wider public should have the greatest possible understanding of the practical effect of a sentence that has been passed. In a nutshell, they all want to know, if a sentence of imprisonment has been passed, how long someone will actually serve. If those matters are not mentioned in open court but only explained to the offender in the cells by counsel, the victim and the public may be under a serious misapprehension as to release date, parole, the nature of licence conditions and so forth. Explanation of those should help public confidence in the sentencing system.

The amendment would prevent such occurrences under the new statutory arrangements by requiring the explanation to be made in open court. I have no intention of pressing it or the other amendments; they simply probe the Government's intention on how explanation of sentences shall be made. In particular, an offender sentenced after the Bill can expect that he may well be at some loss as to know the real effect of the sentence on him. We are trying to help that realisation.

Amendment No. 173D relates to the explanation of early release arrangements. Amendment No. 173E seeks to probe how the new statutory arrangements will operate. At present, the model wording that suggests how sentencers should explain the practical effect of a sentence is provided in the practice direction, but Clause 167 gives no indication of whether sentencers will be expected to use words entirely of their own choosing—I very much doubt it— under the new statutory arrangements, or whether the consistency provided for by the existing model will continue. I hope that the Minister will say that the current practice will be continued on that. I beg to move.

Lord Carlisle of Bucklow

In view of the Minister's comments about my criticisms of verbosity in the Bill, she will appreciate that I do not feel that I can totally support my noble friend in adding the words in Amendment No. 173D to the Bill, as that would extend it by three lines. However, I strongly support my noble friend on the principle, purpose and importance of the amendments in reminding the judiciary what is meant by, the effect of the sentence". I do so for a reason. The noble Lord, Lord Dholakia, will remember a situation that the Parole Review Committee faced. One reason why we were set up was a lack of confidence in the parole system. An indication of that was that people seemed to come out of prison at dates that appeared to have no relationship to the sentences that had been passed and probably published in the local paper, so people said, "He got 18 months and was walking past my doorstep six months later".

As I am sure the Minister knows, in our recommendations we unanimously put forward the scheme then implemented by the government of the day whereby, for sentences of up to four years, half should be served in custody and half under supervision in the community, subject to the supervision of those sentences under 12 months. We said very firmly that we believed it important that the judge at the trial, in sentencing a person to prison, set out in clear terms what the sentence meant by saying, for example, "I am giving you a sentence of three years’ imprisonment. That means that you will spend 18 months in prison. If you behave yourself, you will come out at that stage. For the next nine months you will be under supervision, and for the whole of the further 18 months you will be at risk of recall if you commit a further offence".

The sadly missed, late Lord Chief Justice, Lord Taylor, in a case that I am sure that the Minister has in her brief but of which I cannot now remember the name, specifically gave guidance to judges that they should, in sentencing someone to imprisonment, indicate how much of that period should be in prison and how much out of it. It is a very important matter. As I said, it is not necessary to write it into the Bill, but to emphasise it in Committee, as my noble friend Lady Anelay has, is of great importance.

6.15 p.m.

Lord Renton

Before commenting on each amendment tabled by my noble friend Lady Anelay, I want to make the general point that when the clause refers to, the effect of the sentence", I should have thought that that envisaged the impossible. How can the courts forecast the effects of the sentence on the offender? He may be a persistent offender who will go on committing crimes, or a first offender in which case the sentence may be all right. The court cannot publicly explain, either to the offender or in open court, the effect of the sentence. It is unpredictable. Having said that, I agree very much with the first amendment. The reasons must be given not only to the offender, by passing a note to him or something like that, but in open court.

I have a slight doubt about Amendment No. 173D. I hope that my noble friend Lady Anelay, whose efforts we greatly admire, will forgive me for mentioning it. I should have thought that, when sentencing offenders, the judge must not be too involved in the future. To draw the attention of the offender to a power or duty of the Secretary of State to release him might unjustifiably raise his hopes of an earlier release. We must avoid saying that.

Amendments Nos. 173E and 173F are very valuable, and I hope that the Government will seriously consider accepting them as well as Amendment No. 173C.

Baroness Scotland of Asthal

I regret that I will have to disappoint the noble Lord, Lord Renton, because we cannot accept the amendments. That is for the good reason that we believe that their purport is already met in the framework that we have provided in Clause 167. I very much agree with what was said by the noble Lord, Lord Carlisle of Bucklow, about the importance of the court indicating to the offender the precise effect and what it means—the consequence of how the sentence will operate. That is critical.

We believe that "effect of the sentence" in Clause 167 is crafted in a way to elicit that result. The noble Lord, Lord Carlisle, and the noble Baroness, Lady Anelay, both prayed in aid the benefit of the practice directions issued to assist judges, when they come to sentencing, to express themselves with accuracy and clarity. We would certainly expect those practices to continue. The Lord Chief Justice is already able to issue practice directions with suggested formulations for the giving of reasons and we do not need an addition such as that suggested by the noble Baroness in Amendment No. 173E to allow him to do so. I happily give her the reassurance that she seeks in relation to those matters.

Amendments Nos. 173C and 173F would remove the discretion currently contained within the clause either to prescribe cases where the duty does not apply or to allow reasons to be given in the absence of the offender or to be provided in a written form. We have specifically provided for that in order to cater for the situation in which persons other than the court can provide the necessary explanation; for example, the offender's own legal representative or an officer of the court, with the possibility of the explanation being given orally or in writing where the offender is not at court.

There may also be cases in which the court does not consider it to be appropriate to give reasons; for example, if an offender has pleaded guilty by post to a very minor traffic offence and is not present in court. In most cases, it will be appropriate to give reasons, but a full explanation of the sentence may nevertheless be thought to be inappropriate; for example, if the offender is deeply traumatised by the sentence. The clause provides the Secretary of State with an order-making power to prescribe such cases.

However, the norm will be that the court should state reasons in open court. In most cases, the offender will be present in order to have the effect of the sentence explained to him. We agree with the comments made about the importance of that taking place and it being done in an appropriate and proper way.

I hope that with those reassurances, the noble Baroness will be content—particularly if she still sits as a magistrate. She will not in open court have to give reasons to defendants who have transgressed the traffic offences but are not present to hear her wonderful words.

Baroness Anelay of St Johns

I shall disappoint the Minister only in relation to her last remark. Sadly, I had to resign as a magistrate when I joined the Front Bench in this House because I was not able to give a proper commitment to sit long enough. Nevertheless, I always declare an interest as a former magistrate and have at heart the concerns of magistrates. It is right to identify that.

I am grateful to the noble Baroness for her clarification. I accept her assurances and indicate that I shall not return to these matters on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 173D to 173F not moved.]

Clause 167 agreed to.

Clauses 168 and 169 agreed to.

Clause 170 [Community orders]:

Lord Carlile of Berriew moved Amendment No. 173FA: Page 102, line 8, at end insert— ( ) The court may make repeated use of a community order; and its use for previous offences does not, in itself, preclude it from consideration for the current offence.

The noble Lord said: In moving Amendment No. 173 FA I shall speak also to Amendment No. 173FB standing in the name of my noble friends Lady Linklater and Lord Dholakia. I begin by paying tribute to my noble friend Lady Linklater, who is not able to be here today because she is fulfilling a commitment to sit as a magistrate north of the Border. She is the chair of the Esmée Fairbairn Trust, which has done an enormous amount of work in recent years in the field of youth justice. Its reports are well worth reading as important guidance for policy.

Clause 170 sets out what I am sure will become known as the "community menu". Judges and magistrates, when they are imposing a community order of which there is only one, will have the duty to choose from the menu any one or more of 12 requirements. When I was looking at the requirements prior to the debate, I was bound to reflect that some of us are fulfilling some of them: an activity requirement; a programme requirement; a residence requirement; I hope a curfew requirement, as I shall try to be brief; and in some cases—I confess to this during the dinner hour—an alcohol treatment requirement, although not as intended in the clause.

The purpose of these amendments can be put simply. It is to give clarity to an issue that has caused some concern to myself, to my noble friends and to some of the sentencing policy bodies. There is concern, in particular when one considers Schedule 7 alongside Clause 170, that courts may feel that repeated community orders may be the subject of criticism— indeed, that they may not be appropriate. Many people in the Chamber have experience from various viewpoints, in particular of dealing with youngish offenders, especially those aged between 18 and 30. Many of those offenders catapult themselves downwards into increasing crime and then begin to emerge from it. Few of them emerge quickly.

It is our concern that community orders should remain available—in appropriate cases, of course— when the court feels that there is some hope of improvement in the future. Those of us who used to scrub around the Crown Courts dealing with many pleas of guilty in minor burglary and assault cases always used to try to get them heard on Friday afternoons. The judges tended to want to get away then and were more inclined to give younger old-lags a chance. But a sound principle was involved. Many of them, given that chance and somewhat surprised by it—their counsel never explained the true reason— took the opportunity for the first time to fulfil the requirements of what might be their third or fourth probation or community service order. In many of those cases, once prosecution appeals came into being the Crown Prosecution Service had the good sense not to appeal against them. We are simply concerned that courts should be able to make repeated community orders in appropriate cases.

In Amendment No. 173FB, we seek to ensure that community orders will be appropriate even when fairly serious offences have been committed if the individualisation of the sentence justifies the conclusion that a community sentence is appropriate. It is the reality of what happens every day of the week in the courts—some of the time, at least, in some cases—and we would not want that to disappear from the system. I beg to move.

Baroness Anelay of St Johns

It may be convenient if I speak to my amendments in this group. They approach a similar issue from a different angle. They are based in Clause 171, which gives the Secretary of State the power to make an order that allows or requires the court to review the progress of an offender who is under the community order about which the noble Lord, Lord Carlile, has spoken.

The Secretary of State can also allow a court to attach or remove a review provision from the community order and regulate the timing of the reviews. My amendments ask the Government several questions. Amendment No. 173G asks: why does the clause not give the court the ability to amend the order at the time of the review? If it is anticipated that this will happen, why does it not say so on the face of the Bill without trying to add extra words? I thank my noble friend Lord Carlisle of Bucklow for that.

The reference in the clause to the power of the court to amend in subsection (l)(b) appears only to be the power to make an amendment removing the provision to review itself. Is that the case?

Amendment No. 173H asks: what is the Government's view of the frequency in which these reviews will take place?

Amendment No. 173J deletes subsection (3). This gives the Secretary of State wide powers in secondary legislation to make rules about the timing and conduct of reviews and about the powers the court will have with regard to review itself. Although my amendment knocks out that subsection, that is not because I am hostile to it. The questions that I wish to ask are: what work has been done since the Bill started its progress through Parliament in another place last December to determine what the rules will look like; who has been consulted during that time; and what are the results of the consultation? I beg to move.

6.30 p.m.

Lord Renton

I welcome what my noble friend Lady Anelay said and I particularly wish to draw attention to Amendment No. 173J, which seeks to leave out subsection (3). That subsection states:

An order under this section may repeal or amend any provision of this Part"— that is, this part of the Bill. I believe that having fundamental and important matters amended simply by order on a Bill of this kind is wrong in principle, and I am very glad that my noble friend tabled that amendment.

The Lord Bishop of Worcester

I want to raise what seem to me to be rather central issues relating to sentencing in Amendments Nos. 173FA and 173FB. One argument for the use of custody that personally I have found least persuasive is that it should be used as a remedy for the persistent offender—that is, as a last resort. It suggests, "We cannot think what else to do with this person and so we will lock him up". If, in fact, custody is not the appropriate punishment—that is, if the offence is not serious enough to warrant it or if the need for public protection is not great enough—then I consider that to be one of the least plausible justifications.

Those two amendments put before us a notion that I, and all those concerned with prison reform, consider to be extremely important. We need punishments that make custody the last resort, and we need to ensure that those punishments are used. I welcome the fact that the amendments provide the possibility that, first, if a community sentence is awarded repeatedly, that does not necessarily mean that it is a failure and, secondly, the community order needs to be explicable as proportionate precisely because we are up against a culture in which certain organs of the press, in particular, are apt to treat community orders as far too light and as not real punishment—that is, as a soft option. Therefore, I believe it is very important to require a proper explanation to be given that such a punishment is appropriate.

It seems to me that the two amendments, taken together, offer, on the one hand, a creative cutting-through of the tendency to say, "Oh gosh, we can't think what else to do; we'll lock this person up", and, on the other, an opportunity to say in a public way, "This is a serious punishment, it's a heavy punishment and an appropriate one".

Baroness Scotland of Asthal

We absolutely understand the thrust of the right reverend Prelate's comments in relation to dealing with the root cause of the offending behaviour and giving offenders an opportunity to change that behaviour by properly targeted intervention. I believe that is very much the thrust of what the noble Lord, Lord Carlile, said concerning the utility of using community service punishment as a useful tool on more than one occasion. Just because a community service order fails once, that does not necessarily mean that, differently fashioned, it may not succeed on another occasion, particularly when dealing with a young developing person who may be more amenable to change. We understand all that. Nothing in the way that the Bill is currently framed would prevent a sentencer, if so minded, coming to that conclusion if the circumstances of the case, the nature of the offending and the offender justified it.

However, I believe that we must clearly bear in mind that we are making community sentences very flexible, as the noble Lord has already indicated. By setting the net very wide in Clause 170, we are trying to give sentencers the kind of breadth that they will need to address the offending behaviour on each occasion that the offender comes before them.

Noble Lords will know that sometimes in the past community sentences were not as sharply focused as perhaps the need of the offence and the offending behaviour exhibited by the defendant demanded. By setting out Clause 170 as we do now, we hope to give sentencers the opportunity to direct how the offender should make proper reparation and how to reduce— we return to some of the principles in Clause 135—the level of offending that that seeks to elucidate. Therefore, we say that that is possible.

However, I believe it is right to say that, having given sentencers that breadth and the ability to utilise their discretion on each and every occasion, if they then do so, if offenders continue to re-offend and if the interventions that have been made in the past have not worked, then there will have to be an assessment of whether the offender now needs to graduate into a different type of sentence. That is why we have made it clear in the provisions that a punishment of imprisonment must be considered only after the sentencer has thought about fines and community penalties. Yesterday we spoke about how we have considered reinforcing that.

Therefore, we do not believe that Amendment No. 173FA is necessary. While the new generic community sentence provides the courts with the flexibility to increase the severity of the community sentence by adding tougher requirements, we believe that progression up the sentencing scale may be inevitable if offenders continue to re-offend.

As the right reverend Prelate said, Amendment No. 173FA could result in persistent offenders receiving sentences that did not take into account their failure to respond to previous sentences. For that reason, we consider the amendment to be unjustifiable. However, we do not disagree with the basic thrust of the right reverend Prelate's comments in that the principle of proportionality needs to be borne in mind so that the sentence passed reflects the seriousness of the offence.

We also do not consider Amendment No. 173FB to be necessary. That is because provisions in Chapter 1 of Part 12 already ensure that, when attaching requirements to the community sentence, the courts must consider them to be suitable for the offender and commensurate with the seriousness of the offence. As we have just debated, under Clause 167 the courts are also required to explain their reasons for passing the sentence. Therefore, that gives an opportunity for the courts to say why, if they are to impose another community sentence, they have taken that course as opposed to any other. We suggest that Amendment No. 173FB does not add any substance to the provisions as currently drafted and therefore we would not be minded to accept them.

I turn now to the amendments in the name of the noble Baroness, Lady Anelay—Amendments Nos. 173G, 173H and 173J—which seek to alter an order-making power. That power is to provide for court reviews of community sentences. In the Bill, suspended sentences can be subject to court review, as can the drug rehabilitation element of community sentences following on from DTTOs. An order-making power is provided to extend court review to community sentences as a whole. Court review is a popular option among sentencers, who welcome the opportunity to be involved in the results of their sentencing decisions. We think that it will help to improve the effectiveness of those sentences.

Amendment No. 173G adds to the power of the court during such reviews by adding the power to amend the order as well as to review it. While the motivation for such an amendment is understandable, amendment of the order could amount to a resentencing exercise, which would require a full court hearing, including, for example, the presence of legal counsel for the defence. Court reviews are intended to monitor and to motivate the offender. We do not want to make them over-formal and we do not want to introduce the factor of resentencing that person again and perhaps in a different way.

Amendment No. 173H seeks to make court reviews of community orders regular rather than periodic. "Periodically" is a more flexible term than "regularly". It allows for the court to review an offender more frequently at the beginning of his sentence. An offender's degree of compliance might need to be monitored closely but less frequently as the sentence wears on and the offender proves himself. If one were to monitor regularly, one might say that the offender must be seen every month or every two months, irrespective of how he gets on. If one used the word "periodically", one could say, "Because I am very concerned about compliance I shall see you on a weekly basis for the first six weeks and if you do well I shall see you after another six weeks or two months, and if you do even better I might not see you for a significant period thereafter". That cannot be said to be regular but periodic, although it will be what the defendant needs. That is the difference that we see between "regularly" and "periodically".

The noble Baroness will know that many will say to the sentencer that such a situation should not be allowed because it would not be regular. We want to be absolutely clear that the sentencer can do that which he or she believes will meet the needs of offenders to ensure that the review has meaning and that the offenders comply. We want to help offenders to comply because if they comply we shall have a better chance of rehabilitating them. If we can rehabilitate them successfully they will be less likely to reoffend and so we shall reduce the level of crime. That is the thrust of the matter.

The Secretary of State's order-making power also allows him to repeal or to amend any provision of Part 12 of the Bill. Amendment No. 173J would omit that power. We believe that it is necessary to ensure that all the sections of the Bill that concern sentencing can be amended such that they accord with a new provision to review community sentences. That is the limit of the intention of such a power. I hope that with that explanation the noble Baroness will feel content. I know the amendment is a probing one and I hope that I have outlined and explained the issues that concerned her.

Lord Renton

I wonder whether my recollection is right. I have always understood that where Parliament has laid down sentences, power to change what Parliament has laid down has been avoided. We should not have subordinate legislation to alter the importance of the fixing of sentences.

Lord Mayhew of Twysden

Can the Minister remind the Committee what the Select Committee on Delegated Powers and Regulatory Reform said about this? It would have expressed an opinion and I think it made the point that my noble friend has just made, although I may be wrong about that. However, it is rather important.

6.45 p.m.

Baroness Scotland of Asthal

I do not believe that this was an area of criticism. I shall check on that. I say that because all the areas of criticism have been brought to my attention and there is not one in relation to this matter. I can certainly undertake to clarify that point for the noble and learned Lord. Yes, I am right. The Select Committee accepted it and did not consider that there was anything wrong with it.

The reason is that we are not reviewing the sentence; we are assisting in the enforcement of that sentence. One is not changing the sentence. If I were to accept the amendment tabled by the noble Baroness, we may be at risk of resentencing, which would not be appropriate. However, we do not seek to do that. We are seeking to allow the court to monitor the compliance with the sentence that it makes. Noble Lords will know that if compliance is an issue and if the court does not feel that proper control can be maintained to ensure that the offender complies, the court may be less minded to give a community sentence. It is seen by sentencers as something that they would want to have so as to keep a proper handle on what happens.

Lord Mayhew of Twysden

Before the noble Lord, Lord Carlile of Berriew, replies perhaps I can make two points that I should have made earlier. First, it is fine and large when we read what has been described as the community order menu—all these very important and desirable variants that are available—but it will be critically important that enough money is available for the various services that have to deliver them. I do not have first-hand knowledge of this but one has read of great difficulties within the probation service and it would be reassuring to the Committee to know—the noble Lord, Lord Carlile, may like to pose a question about this—whether there is specific provision for the financial consequences of this part of the Bill. Otherwise, it will simply create many opportunities that, like so many in this area, will be lost for lack of resources.

My second point is that I welcome Amendment No. 173FA which states:

The court may make repeated use of a community order", because an unfortunate fact is that community orders do not have a much better non-recidivism record than custodial sentences. That leads people to think that it is a soft option and one that is a sign of weakness if resorted to repeatedly. One has to acknowledge that in nearly as many cases the offender reoffends, but it seems to me that it is better to risk that than to send someone to a prison again where the same lack of resources and inability to deliver on its mission statement will be found.

This week I have already alluded to Sir David Ramsbotham's recently published book. It makes lamentable and miserable reading to see how frustrated decent and well-meaning prison officers are because of a lack of resources. I agree with what has been said by the right reverend Prelate, that non-custodial sentences or a community order should be regarded as punishment and that the punishment character of them should be emphasised. Therefore I believe that it is well worth including a statement of fact or principle in the Bill, such as Amendment No. 173FA provides.

Lord Carlile of Berriew

We have had an interesting debate on the issues raised by our amendments and by the amendments tabled by the noble Baroness, Lady Anelay. I am grateful to the Minister for her explanation of Clause 170. This is another of those issues upon which there is a shared sense of purpose among all parties in the Committee and all Members of the Committee. The question is how explicit the legislation is about how that purpose is achieved. We would have wished for greater clarity in the text of the Bill.

The noble and learned Lord, Lord Mayhew, raised an extremely important point. My understanding of the situation is that there is no ring-fenced money for the provision of community correctional services. Community sentences represent good value for money, even if one is pessimistic and takes the view that people are no less likely to re-offend after a community sentence than after a prison sentence. A community sentence demonstrably represents better value for money and better value in social terms because it does not dislocate the family of the offender as much as a prison sentence.

We have become accustomed very quickly in this Chamber to the wise contributions of the right reverend Prelate the Bishop of Worcester. I suggest that his remarks about proportionality should be required reading for judges as well as for those engaged in policy making. That was a very important point in relation to wider issues as well as to the narrow issue we are debating.

Having regard to what has been said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 173FB not moved.]

Clause 170 agreed to.

Clause 171 [Power to provide for court review of community orders]:

[Amendments Nos. I73G to 173J not moved.]

Clause 171 agreed to.

Clause 172 agreed to.

Schedule 7 [Breach, revocation or amendment of community order]:

Lord Carlile of Berriew moved Amendment No. 173JA: Page 224, line 8, leave out paragraph (c).

The noble Lord said: In moving Amendment No. 173JA, I shall speak to the amendments standing in the name of my noble friends. The amendments raise an issue of principle with which I can deal briefly. There are many minor offences which are not punishable by imprisonment, but some people who choose not to obey orders placed upon them by the court or to pay the fines ordered by the court, nevertheless end up in prison.

As a matter of principle, I would argue that we should use every means possible to avoid having people who have committed an offence which is not punishable with imprisonment, end up in prison in effect because the starting point of the whole condition was that they committed an offence not punishable with imprisonment. Professor Andrew Ashworth, who is one of the foremost criminologists in this country and whose opinion is very widely respected, not least through his lectures to the Judicial Studies Board and his many articles in the Criminal Law Review, has described something he calls "condition creep". It is a process whereby someone commits a minor offence but, perhaps because of an unjustifiable attitude, ends up in prison because he does not obey the court's order.

We on these Benches ask the question founded on principle: is it really right that those people should end up in prison at all? Surely there are other ways to deal with them; for example, by attachment of earnings orders or otherwise removing money from them, which would avoid their cluttering up the prisons.

The noble and learned Lord, Lord Mayhew, referred a few moments ago to Sir David Ramsbotham's remarkable, though not unexpected, published views about his experience as Chief Inspector of Prisons. He was not appointed by this Government. Sir David came to the prisons from a military background and I suspect that it was expected that he would not rock the Government's boat over the prison system. But he did. He was right to do so. I think we all recognise that. Part of the evidence for the Ramsbotham thesis—if I can call it that—is that there are far too many people in prisons, taking up space and costing taxpayers ridiculous sums of money, who really should not be there.

If one were to pick one category of people to shed from our prisons, surely it would be people who have committed offences which never were punishable by imprisonment. I beg to move.

The Deputy Chairman of Committees (Lord Carter)

If Amendment No. 173JA is agreed to, I cannot call Amendment No. 173K for reasons of pre-emption.

Baroness Anelay of St Johns

I shall speak to my Amendments Nos. 173K to N, which are grouped with those of the noble Lord, Lord Carlile of Berriew. We go from the general principle, set out so clearly by the noble Lord, Lord Carlile, to some specific questions.

As set out by the noble Lord, Lord Carlile of Berriew, Part 2 of Schedule 7 to the Bill lays out the procedure for dealing with offenders who have breached the requirements of their community sentence. My amendments relate to the criteria in the schedule, which will allow the court to impose a custodial sentence for a breach of a community order in circumstances where that custodial sentence could not have been imposed for the original offence, either because the offence was not one punishable with imprisonment or because the custody threshold set out in Clause 144 was not passed.

In both cases the criterion under which the courts are to be empowered to impose a custodial sentence for breach of a community order is that the offender has "wilfully and persistently" failed to comply with the requirements of the community order. My amendments refer specifically to the word "persistently" in this context. There is a little déjà vu here because again I ask the Minister: what do the Government mean by "persistently"? On Monday the Minister responded that three was the magic figure and she explained why.

I tabled these amendments and kept them on the Order Paper for today with the decision of the Court of Appeal in the case of S (A) very much in mind. The case is reported in Volume 1 of the Criminal Appeal Reports (Sentencing) for 2001, at page 62. In that case the Court of Appeal held that a juvenile offender with no previous convictions could be a "persistent offender" for the purposes of Section 100 of the Powers of Criminal Courts (Sentencing) Act 2000. That was on the basis that the offences of which he had been convicted were serious and were committed over a period of two days. So it is clear that the courts are indeed prepared to take a very wide approach to the definition of the word "persistent". My question is: do the Government intend that a similarly wide approach should be taken under the Bill in the context of sentencing offenders to custody for "persistent" breaches of their community orders? Is that the course they are taking, or are they sticking by their Monday definition?

Baroness Scotland of Asthal

In relation to the last point of the noble Baroness, of course the Monday definition was very much targeted at the situations with which we were then dealing; namely, how one moves from the description of whether we have one or two, or three or more. In that context, it is probably better that we leave that description to explain that clause, rather than to broaden it out more widely.

I turn to the amendments of the noble Baroness. In many senses this is déjà vu because I have the noble Baroness on one side invoking the need to toughen the implementation and enforcement of orders and on the other I have the Liberal Democrat Benches in the form of the noble Lord, Lord Carlile, saying, "No, we have to be far more mild and soft"—not soft—

Lord Carlile of Berriew

Pragmatic.

Baroness Scotland of Asthal

The noble Lord suggests "pragmatic". I know that others will say soft. Once again we intend to be right in the middle—firm but kind.

Perhaps I may deal with the points of the noble Baroness. As drafted, the court can make the requirements more onerous or indeed revoke the order and re-sentence the offender. If the breach is wilful and persistent, it can also imprison an offender whether or not the original offence was imprisonable.

The amendment would remove the requirement for the breach to be persistent as well as wilful, so it could mean that for one breach—the first breach—there would be an immediate custodial sentence. That is going too far. Once again, we rely on the discretion of the court. The court will need to consider the pattern of offending behaviour.

The example which the noble Baroness gave of the 2001 case would doubtless result from the individual having committed a number of offences. She will know that sometimes, regrettably, individuals come before the court not only with a number of specific charges but a large number of offences taken into consideration. Regrettably, they can stretch not over a short period of days but over a period of years if, once caught, one can identify by DNA or other forensic evidence that the offender has participated in a series of offences over such a period. An offender facing one charge who comes before the court for the first time with no other charges falls into a different category from a person who comes before the court for the first time but, regrettably, with 50 TICs and 17 charges.

So the balance is about right. The powers in the Bill for breach of community sentences are already tougher than those currently available. Currently, the court can take no action upon a breach; it can fine the offender; it can impose a community punishment order; in certain cases, it can impose an attendance centre order; or it can revoke the order and re-sentence the offender. Re-sentencing can include custody if the breach was wilful and persistent, whether or not the original offence was imprisonable.

The Bill requires the court to punish all breaches of a community sentence by making the order more onerous or by revoking the order and re-sentencing. In making the order more onerous, it will be perfectly open to the court to add further conditions. By removing the element of discretion in punishing a breach and the option of imposing a fine, enforcement should be more meaningful and onerous in all cases.

We do not intend to change the current position for dealing with wilful and persistent breaches. We believe that the power to impose a custodial penalty for breach regardless of whether or not the original offence attracted imprisonment is rightly reserved for the most serious cases where the breach is both wilful and persistent. I shall therefore resist these amendments.

I hope that it is of some comfort to know that, similarly, I shall resist the amendments spoken to by the noble Lord, Lord Carlile, for the following reasons. Amendments Nos. 173JA, 173LB, 173MA and 173KA would reduce the court's power to respond to a breach of a community order. Amendments Nos. 173JA and 173LB would remove the court's ability to impose a sentence of imprisonment of 51 weeks or less in cases where there was a wilful or persistent breach of a community order.

The provisions to which these amendments relate are re-enactments of provisions in the Powers of Criminal Courts (Sentencing) Act 2000. As I said, we believe that the power to impose a custodial penalty for breach regardless of whether or not the original offence attracted imprisonment is rightly reserved for the most serious cases where the breach is both wilful and persistent. Removing the ability of the court to impose a short sentence of imprisonment in those circumstances would undermine the credibility of the generic community sentence as a viable alternative to a short custodial sentence and reduce the confidence of sentencers and the public in that sentence.

The noble Lord is right when he says that we must encourage the sensible use of community sentences. We certainly want them to be better targeted and consider them to be powerful tools in the sentencers’ armoury. We want them to make use of them, but in order to ensure that, we want them to have teeth; we want sentencers to have confidence in using them, knowing that if the trust that they place in the offender is abused in an unacceptable and inexcusable way, the court can do something about it.

Amendments Nos. 173MA and 173KA would allow the courts to take no action in response to a minor breach of a community order. That would mean that an offender could fail to adhere to their requirements but would face no significant punishment. These amendments would signal to offenders that a minor breach was acceptable. We do not want to create that impression; we believe that every breach should be acted on if the generic community sentence is to gain the confidence of sentencers and the public. For those reasons, although we understand that thrust of what the noble Lord said, we cannot accept the amendments.

7 p.m.

Lord Carlile of Berriew

I must confess to being disappointed at what the Minister said. Nevertheless, I do not want to press the matter to a vote, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 173K to 173L not moved.]

Baroness Scotland of Asthal

Schedule 8 provides for the transfer of community orders to Scotland and Northern Ireland. When an order transfers, certain provisions that relate only to England and Wales must be translated so as to apply in Scotland and Northern Ireland. One of these is a reference to the Mental Health (Scotland) Act 1984, which is used in defining what a hospital means for the purposes of mental health treatment. That Act is being superseded by a new Act, the Mental Health (Care and Treatment) Scotland Act 2003, and thus Amendment No. 173AA updates the reference.

Amendments Nos. 173ZAB, and 174 merely correct drafting errors. Amendments Nos. 173ZA, 173AAA and 174A—

The Deputy Chairman of Committees

We are on Amendment No. 173LA; the Minister is speaking to Amendment No. 173Z.

Baroness Scotland of Asthal

I pray in aid having been in the House until half past midnight yesterday and back on duty by about eight o'clock this morning. I apologise. I am grateful for the sympathy of the Committee; I think that many Members of the Committee were here with me. I must first deal with Schedule 7.

Schedule 7 deals with the breach, revocation and amendment of community orders. Amendments Nos. 173LA, 173R, 173T and 173W limit the power of the Crown Court in dealing with the breach, revocation and amendment of a community sentence made on appeal, such that its powers do not exceed those available to the magistrates' court that originally made the order. That is consistent with existing legislation on appeals under Section 48 of the Supreme Court Act 1981.

Amendments Nos. 173Pand 173Q correct mistaken references to "relevant orders". As this schedule deals only with community orders, those references must be corrected.

Amendments Nos. 173Q and 173X tidy the drafting. Paragraph 24 should make reference to all the clauses under which an application should not be made to the court while an appeal against the order is pending. A reference to paragraph 13 belongs here, rather than in a separate sub-paragraph to paragraph 13. Amendment No. 173S ensures that the court that deals with applications to amend the residence of an offender on a community order that has a drug treatment requirement with review attached is the court that does the reviews.

Amendments Nos. 173U and 173V change slightly the definition of the court to which an application must be made to extend an unpaid work requirement beyond 12 months. It has changed from,

a magistrates' court acting for the petty sessions area concerned to, the appropriate court". That was done so that it can apply to community orders transferred to Scotland and Northern Ireland, in which cases the appropriate court is the local Scottish or Northern Irish court. The meaning is unchanged for England and Wales. With apology, I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 173LB to 173N not moved.]

Baroness Scotland of Asthal moved Amendments Nos. 173Pto 173Y: Page 226, line 40, leave out "relevant" and insert "community Page 227, line 3, leave out sub-paragraph (7). Page 227, line 27, leave out from "which" to end of line 29 and insert "he could have been dealt with for that offence by the court which made the order if the order had not been made." Page 228, line 22, at end insert— ( ) in relation to any community order imposing a drug rehabilitation requirement which is subject to review, the court responsible for the order," Page 229, line 2, leave out from "which" to end of line 3 and insert "he could have been dealt with for that offence by the court which made the order if the order had not been made." Page 230, line 6, leave out from "to" to "that" in line 7 and insert "the appropriate court Page 230, line 10, at end insert— (2) In this paragraph "the appropriate court" has the same meaning as in paragraph 16." Page 231, line 15, leave out from first "which" to end of line 17 and insert "he could have been dealt with for that offence by the court which made the order if the order had not been made;" Page 231, line 24, after "paragraph" insert "13," Page 231, line 39, leave out "a relevant" and insert "the

On Question, amendments agreed to.

Schedule 7, as amended, agreed to.Clause 173 agreed to.

Schedule 8 [Transfer of community orders to Scotland or Northern Ireland]:

Baroness Scotland of Asthal moved Amendment No. 173Z: Page 233, line 12, leave out "for

The noble Baroness said: I have spoken to virtually all the amendments when dealing with the previous group. Perhaps the Committee will permit me to take up where I left off, at Amendments Nos. 175 and 177. Generically, all the other amendments to which I have spoken seek to make minor technical adjustments, as I outlined earlier.

Amendments Nos. 175 and 177 ensure that, if an offender is required to appear before a court in England and Wales, that court shall be either the sentencing court or the court that amended the order to transfer to Scotland or Northern Ireland. The original drafting did not provide for the latter, and we have cured that.

Amendment No. 176 aligns the wording in paragraph 13(a) and (b), but the meaning is unchanged. They are all technical amendments. I beg to move.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendments Nos. 173ZA to l77: Page 233, line 45, leave out paragraph (d) and insert— (d) subsection (4) of section 209 (availability of arrangements in local area)." Page 234, line 3, leave out "Mental Health (Scotland) Act 1984" and insert "Mental Health (Care and Treatment) (Scotland) Act 2003 Page 234, line 4, at end insert— (5) In section 206 (electronic monitoring requirement), in subsection (3), the words from "and" onwards are omitted." Page 234, line 37, leave out "for Page 235, line 5, after "has" insert "effect Page 235, line 16, leave out paragraph (d) and insert — (d) subsection (4) of section 209 (availability of arrangements in local area)." Page 235, line 26, at end insert— (5) In section 205 (attendance centre requirement), any reference to an attendance centre has effect as a reference to a day centre, as defined by paragraph 3(6) of Schedule 1 to the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160(N.I. 24). (6) In section 206 (electronic monitoring requirement), in subsection (3), the words from "and" onwards are omitted." Page 237, line 22, leave out from "before" to "that" in line 23 and insert "a court in England and Wales". Page 237, line 36, leave out from "that" to end of line 38 and insert "the conditions in paragraph 3(1)(a) and (b) are satisfied in relation to any requirement to be imposed Page 237, line 44, leave out "the court which made the community order" and insert "a court in England and Wales

On Question, amendments agreed to.

Schedule 8, as amended, agreed to.

Clause 174[Prison sentences of less than 12 months]:

7.15 p.m.

Baroness Anelay of St Johns moved Amendment No. 177A:

Page 102, line 32, leave out "Any power of a court to impose"

The noble Baroness said: With the leave of the Committee, I shall speak also to Amendments Nos. 177B and 177C. I shall not speak to, nor shall I move, Amendments Nos. 177D to 177F.

Chapter 3 of Part 12 deals with prison sentences of less than 12 months. It introduces the new sentences of custody plus and intermittent custody that were recommended by the Halliday report. My amendments relate to the custody plus sentence and cover its scope.

Clause 174(1) gives the scope as follows:

"Any power of a court to impose a sentence of imprisonment for a term of less than 12 months … may be exercised only in accordance with the following provisions of this section".

As I read the Bill, that means that a custody plus sentence may be imposed only where the power of a court to order imprisonment is a power to order imprisonment for less than 12 months—that is, where the maximum sentence is less than 12 months. However, the Explanatory Notes state that custody plus will apply to,

"all prison sentences of less than 12 months".

I ask the Minister to consider whether the drafting of subsection (1) is ambiguous, and whether, if the Government's intention is accurately reflected in the Explanatory Notes, the incorporation of the first three amendments of my group would make the position clearer by changing subsection (1) so that it reads as follows: "a sentence of imprisonment for a term of less than 12 months may be imposed by a court on an offender only in accordance with the following provisions of this section". As well as making the applicable part of the subsection clearer, the amendments would reduce the number of words and therefore might please some of my noble friends. I beg to move.

Lord Carlile of Berriew

The group includes six amendments tabled in the names of my noble friends. The theme behind those amendments is that courts should not impose as a soft option a more condign punishment than they would otherwise have imposed. Under the old system, many offenders were the subject of suspended sentences of imprisonment because it was an easy option for the courts in cases where a custodial sentence would not otherwise have been imposed. In some cases it worked; however, in other cases, it led to people who committed relatively minor breaches of suspended sentences serving a substantive term of imprisonment later.

As a result, the exceptional circumstances provision was introduced. For a time, it made suspended sentences extremely rare. More recently, the courts have become more generous in their interpretation of what is exceptional. The Court of Appeal Criminal Division has, in some circumstances, approved that change of attitude.

We are concerned that, with custody plus, intermittent custody and suspended sentences as set out in the Bill, we should not have the experience that we suffered under the old form of suspended sentence. In Amendment No. 177FA, therefore, we simply set out what I hope the Minister will agree is the principle that the Government intend should apply. It is that, rather than as an easy option, custody plus should be imposed only when the court is clear that a full custodial sentence would be justified.

In Amendment No. 177HA, we suggest that the court making a custody plus order should be required to give reasons why that order is regarded as appropriate and necessary. We are not asking for a lengthy reasoned judgment in the style of the Court of Appeal. We ask what one can reasonably expect of any court these days: succinct reasons or information explaining to the offender, and for the purposes of any appeal, why the order has been imposed.

In the general context to which I have referred, we are particularly concerned about intermittent custody. We are not opposed to the option of intermittent custody being available to the courts. As many tools as possible should be available for the courts to deal with criminal offences, to punish those who commit them and to avoid them having to spend longer in custody than is absolutely necessary. However, we fear that intermittent custody, in particular in its era of novelty, might be regarded as a soft option by some courts. It should be clear in the legislation, as set out in Amendment No. 177JA, that intermittent custody should be imposed only where the court is clear that a full custodial sentence would be justified. That is not a departure from established principle; it follows the established principle that applies for suspended sentences. In Amendment No. 177JB, as in the earlier amendments, we ask for reasons.

In Amendment No. 179ZB, which is in the same group but applies to Clause 181, we set out similar suggestions in relation to suspended sentences. They should be imposed only where a full custodial sentence would be justified, and the court should give reasons.

We say to the Minister that, whereas some of the suggestions that we have made today may be covered by the Bill, and may be implicit if not explicit, these items ought to be explicit in the Bill. The explanation required in the amendments would assist the courts and ensure that consistency without uniformity underpins sentencing policy.

Lord Renton

The amendments of my noble friend Lady Anelay do not alter the principles of Clause 174 but I think they improve its drafting. As to the details of the amendments—the number of weeks that should be considered in the various circumstances mentioned in subsections (5) and (7)—I hope that the Government will realise that the amendments make the matter much more realistic. To say that a custodial period should not be more than 13 weeks is most unrealistic and would tie the hands of the court unnecessarily.

Baroness Stern

I will speak very briefly because I feel great sympathy for the Minister. I am surprised that she is still awake and I am very grateful to her for being so. I think her stamina is extraordinary. I would like to say a word in support of Amendment 173FA and similar associated amendments spoken to by the noble Lord, Lord Carlile. It is very important that we try to include in the Bill the intended use of these new sentences.

Over many years, we have tried, through legislation, to advise sentencers on how we hope sentences will be used. Those attempts have usually failed. We are now in a situation in which the use of imprisonment is moving down a tariff, the use of community sentences has reduced and the use of fines has almost disappeared. None of that was intended by the legislation. In fact, successive legislation has hoped that the outcome would be different. More needs to be done than simply including the information in the Bill. However, if the sentences are to be used as the Government intend, that would be a good starting point for the subsequent training and implementation which, in the case of this Bill, will be a very substantial endeavour.

Lord Carlisle of Bucklow

I accept and concede to being totally confused, but I think that we are covering amendments that cover the whole of Clauses 174, 175 and 176. I could say to my namesake that the partial reason for my confusion may be that I have been out of the Chamber for the past 20 minutes, but was apparently speaking most of that time. I was in the Chamber while I was outside the Chamber according to the annunciator.

If I am correct in saying that we are covering these three clauses, I make some general comments. The provisions in Clause 176 are, as far as I know, totally new within the judicial system of this country. As I understand it, it effectively introduces weekend imprisonment. I apologise to the Minister, because I realise the stress that has been on her, but it is important that she sets out the purpose of Clause 176 and the way in which the Government intend it to be used.

Weekend imprisonment is extremely successful in Sweden although it is many years since I went there and saw what was happening. However, I have always understood that the problem in this country is one of space. I was always told that intermediate or intermittent custody—which I understand to be weekend imprisonment—could not be introduced because of the problem of where to imprison people. The prisons are full. I welcome this form of imprisonment because people who are able to work during the week should do so. They should serve their sentences by being required to report on a Friday evening as they are in Sweden and then released back to their work at a later stage until they have carried out the days of their sentence. However, we should know where those sentences are to be served and whether there is the necessary capacity.

Therefore, on Clause 176, I express my pleasure in seeing the idea in the Bill, but question whether the Government have thought through how the measure will be implemented. I hope that the Minister can help us on that point.

Clause 174 refers to prison sentences of less than 12 months. I understand that in custody plus the court will have the power to impose a sentence of up to 51 weeks stating the number of those weeks that shall not exceed 13, I believe, in which time will be spent in custody. The rest would be served under supervision. I am sorry to return to the committee that the noble Lord, Lord Dholakia, and I were on, but we went into the matter in considerable detail. The problem is that if we extend supervision, as this Bill intends, to sentences of less than 12 months, the increased pressure that is put on the probation service is enormous. One must ask the Government whether they have thought through the implications for resources that this proposal will have.

I confess that I do not have my copy of the Parole Review Committee report with me and I had to get the copy from the Library. I refer the Minister to Paragraph 294 of that report, in which we set out why, if a sentence is less than 12 months—while accepting that offenders should be released at the halfway stage and subject to recall up to the full stage if they commit a further offence—we did not believe that it was appropriate to impose conditions of supervision during that period. It states:

But it is questionable whether it is cost-effective to have to set up supervision arrangements for those serving very short sentences and the sensible course therefore would be for everyone receiving a sentence of 12 months or more to receive supervision. Therefore, those serving sentences under 12 months should not, having looked at the resource implications, be subject to conditions other than the condition to be of good behaviour.

I have not given the Minister notice of these questions but I wonder whether the Government have thought the matter through. What are the implications for those services? Although we published the report some years ago—and it was a unanimous report—we were satisfied at the time that resources were not available sufficiently to provide supervision for short-term prisoners. My worry is that against the wishes of the Government, the effect of Clause 174 may be to increase rather than reduce the prison population. People will be brought back before the courts for being in breach of conditions that have been imposed during their short term of release under supervision, rather than merely being released with the overriding condition that, if they do anything criminal in that period, they will be brought back and dealt with for that offence, as well as the current one.

I ask the Government—not in a carping sense— whether they are satisfied about that. Have they considered the effect on resources? Do they believe that the resources that, we felt at the time, did not exist now exist? Are they satisfied that it will not lead to an increase in the prison population, rather than a reduction? Is it the best use of available resources to make people on short terms of imprisonment adhere to conditions other than the condition not to re-offend during their sentence?

7.30 p.m.

Baroness Scotland of Asthal

I agree with many of the comments made by the noble Lord, Lord Carlisle of Bucklow, about the utility of intermittent sentences and the need to think it through. I assure him that we have given much thought to the way in which it will operate. It may help the Committee if I say a few sentences about the work that we are doing together on the national Criminal Justice Board and the local criminal justice boards, which bring together all the criminal justice agencies in an attempt to adopt a more holistic approach.

The noble Lord will see, throughout all the provisions on sentencing, that we seek to create a better and closer partnership between the police, the Crown Prosecution Service, the courts, probation, prison and those in the voluntary sector who seek to assist offenders at whatever stage. We understand that there will be a greater need for interdisciplinary participation in some of the issues. It is not just a matter of intermittent sentences. We are examining the conditions attached to a caution, in the hope that we can prevent some offenders getting a criminal conviction. That involves work between the police, the CPS and the probation service at an early stage. We hope that that will reduce the number of people who accelerate up the scheme and the need to take advantage of the community service provision. Again, probation will be heavily involved in that. We will work with the probation service and others while offenders are in prison to carry out a risk assessment and, then, consider a resettlement package when the prisoners come out and the probation service picks them up.

We understand that there are new resource considerations. We also understand that it is incumbent on all parts of the criminal justice system to work together in a different way from that in which we have worked before. That is a throwback to some of our earlier debates, and it is one of the reasons why it will be so critical for the other disciplines that participate in the process to have a word or two to say on the Sentencing Guidelines Council to make sure that everything is threaded together. The noble Lord is right to say that, if the system is to work, we will have to think carefully about the new strains and stresses that will be put on all the agencies to allow us to deliver the new package.

We know that the research demonstrates that delivering the system in that way is likely to be the most effective way of making a difference to individual lives. In saying that, I refer to Amendment 177JA. I shall deal with the amendments spoken to by the noble Lord, Lord Carlile of Berriew, in more detail in a moment.

The noble Baroness, Lady Anelay of St Johns, moved Amendment No. 177A and spoke to Amendments Nos. 177B and 177C. She has not spoken to Amendments Nos. 177D, 177E and 177F, so I can leave those to one side. I say frankly that we did not understand the import of Amendments Nos. 177A, 177B and 177C. Although the amendments sought to improve the drafting of the provisions that enabled the court to impose the new sentence—custody plus—they appeared to us, at first blush, to be unnecessary, as they made no discernible difference to and had no discernible effect on the content of the clause. We considered that the current drafting was to be preferred. I listened to what the noble Baroness said, and I have not got an answer to her point. I would like to give her an answer, so I shall consider the matter again. I shall write to her in the interim, as soon as we have given the matter proper consideration, which we have not done at the moment.

The amendments spoken to by the noble Lord, Lord Carlile of Berriew, were supported by the noble Baroness, Lady Stern. I shall deal with some of the points raised. The amendments seek to ensure that the courts will pass a sentence of custody plus or intermittent custody or a suspended sentence only if it is clear that a full custodial sentence is justified. The amendments must be rejected because Clause 144 already sets out that a custodial sentence can be imposed only if the offence is so serious that neither a fine nor a community sentence would be adequate punishment. I know that that is the thrust of what the noble Lord wanted to demonstrate through the amendments.

Amendments Nos. 177FA, 177JB and 179ZB would not add any substance to the existing provisions. Similarly, there are already provisions in the Bill that require the court to give reasons for the sentence passed—Clause 167, which we discussed earlier—and ensure that the requirements attached to the sentence are appropriate, compatible and available. Amendments Nos. 177HA, 177JA and 179AA are, therefore, unnecessary. There are provisions to ensure that the court may not impose requirements such as programmes, activity or unpaid work, unless it is satisfied that the offender is suitable for them. There is also a provision in Clause 208 that ensures that the court may not impose any requirement that conflicts with the offender's religious beliefs.

I know that the Committee was concerned that we should not replicate the sort of constraints currently present on suspended sentences. I reassure the noble Lord, Lord Carlile of Berriew, that those matters have been dealt with, so he need not be concerned about that. The provisions are already there. There is no "exceptional circumstances" limitation in custody plus, intermittent custody or suspended sentences such as exists currently in suspended sentences. I hope that, with that, the noble Lord will feel content.

Baroness Anelay of St Johns

I am grateful to the Minister for saying that she will consider the drafting points that I raised. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 177B to 177FA not moved.]

Clause 174 agreed to.

Lord Bassam of Brighton

I beg to move that the House do now resume. In moving the Motion, I suggest that the House be again in Committee no later than 8.39 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.