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'it would be in the interest of justice to impose a sentence, other than the sentence required by subsection (2) above, it'.

Mr. Deputy Speaker: With this, it will be convenient to discuss also the following amendments: No. 148, in page 2, line 17, after 'circumstances', insert

'whether relating to the offence or to the offender'.

No. 244, in clause 2, page 4, line 31, leave out from 'that' to 'may' in line 35, and insert

'it would be in the interest of justice to impose a sentence, other than the sentence required by subsection (2) above, it'.

No. 149, in page 4, line 31, after 'circumstances', insert

'whether relating to the offence or to the offender'.

No. 150, in clause 3, page 5, line 30, after 'circumstances', insert

'whether relating to the offence or to the offender'.

Mr. Wallace: The amendment would ensure that the element of discretion afforded to the judiciary in the two clauses relating to automatic and minimum sentences was concerned with the interests of justice rather than trying to find or establish exceptional circumstances.

I want something more akin to a presumptive than an automatic life sentence, because it is our contention that the provisions in the Bill as it stands amount to an unreasonable fettering of the judiciary. Our constitution, unwritten though it is, proceeds upon a separation of powers among the judiciary, the Executive and the legislature. It has always been clear that Parliament must legislate for sentences, but the Bill seems to be moving towards putting the judiciary in a sentencing straitjacket.

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It is significant that in more than one of our debates today the Minister has objected to or opposed certain moves on grounds of the need to provide the judiciary with discretion. There have been newspaper reports recently that the Secretary of State is planning to introduce training for judges, but training would not be needed if the discretionary element in sentencing were removed.

In many cases in which an automatic life sentence would follow a second offence, the courts already have power to pass life sentences if they believe that the circumstances, the seriousness of the crime or the dangerous nature of the person who committed it make that appropriate. If a court has regard to all the circumstances of a case and yet believes, despite having the opportunity to pass a life sentence, that a fixed sentence is more appropriate, it would surely amount to injustice if a more harsh sentence--a life sentence--had to be passed.

From an earlier response of the Minister's, we know that there have been relatively few appeals by the Lord Advocate against a sentence that he considered too lenient. The figures in the White Paper show that, of 1,407 people convicted between 1990 and 1994 of an offence within the categories designated in the Bill, 75 per cent. received custodial sentences. The other side of that coin is that, despite the nature of the crimes, 25 per cent. of cases were regarded by the courts, when they had been made aware of the full circumstances of the offence and of the offender, as not meriting a custodial sentence. If a life sentence may have to be imposed even in circumstances in which the courts do not believe that any custodial sentence is appropriate, that can lead only to injustice.

In many of the 75 per cent. of cases to which I referred, there would be lengthy fixed sentences and the period in prison would be followed by long periods of supervision under licence, during which the offender could be recalled. I understand the Secretary of State's argument to be that prisoners would be released only on licence if a life sentence had been imposed, and that they could be recalled at any time. If reoffending is predictable and prisoners are under supervision, why is the power of recall not used even under the present system? Even with an automatic life sentence, it is quite foreseeable that the parole board would nevertheless opt for release in circumstances in which it did not predict any reoffending, and we should be in much the same position as at present.

8.15 pm

There is a strong argument that what the Government are proposing in this exercise in machismo could weaken public protection. It could lead to an increased risk of wrongful acquittals. I will give an example of circumstances in which an acquittal might take place if an automatic life sentence loomed.

Many offences involving violence and serious violence occur within the family. That is deeply to be regretted, and it does not excuse such crimes, but the fact is that witnesses could be deterred from giving evidence if one member of the family would, on conviction, receive an automatic life sentence. Many a jury might be deterred from convicting if it believed that, in all the circumstances of the case, an automatic life sentence would be disproportionate. In many such cases, counsel

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representing the accused could draw to the jury's attention the consequences of a guilty verdict, and what might appear to be a shadow of a reasonable doubt might well become a substantial reasonable doubt.

Many more cases are likely to go to trial as a result of the Bill, increasing the number of victims of crime who have to go through the trauma of giving evidence. There could also be more examples of plea bargaining. One of the crimes that will lead to an automatic life sentence on a second offence is an assault

"with an intention to rape or to ravish the victim."

It is not unforeseeable that, to secure a conviction, that offence might be reduced through plea bargaining to a plea of guilty of indecent assault, with all the offence that that might cause to the victim.

The qualifying offences are full of anomalies. One is

"Robbery, where at some time during the commission of the offence, the offender had in his possession a firearm or an imitation firearm."

I do not in any way seek to diminish the seriousness of such an offence, but someone who had a toy gun in the boot of a getaway car used in the commission of an offence could, if that were established, be guilty of an offence that would lead to an automatic life sentence. If, however, a combat knife had been brandished in the face the person being robbed, that would not lead to such a sentence. Such anomalies are liable to bring the law into disrepute.

The amendments also deal with drugs offences and the mandatory seven-year sentence. I have no truck with those who peddle drugs; they are some of the most evil perpetrators of crime. The right hon. Member for Fareham (Sir P. Lloyd), in discussing similar provisions for England and Wales, said:

"For example, young drug addicts who sell small quantities of drugs to other addicts will get the same sentence as professional drug pushers."--[Official Report, 19 June 1996; Vol. 279, c. 908.]

That is the sort of consequence that can arise and that will be regarded as unjust, not only by those who have to serve the sentences but by their families. It will bring the law into disrepute. Many small-time drug addicts will be less likely to co-operate with the police in assembling cases against major drug pushers if the consequence of co-operation is an automatic sentence of seven years or more.

The Minister may argue that the Government make some provision for flexibility by referring to "exceptional circumstances". The Lord Chief Justice south of the border has said that "exceptional" is a word that can be given a very narrow definition and suggested that psychiatric problems or threats of suicide may not be "exceptional circumstances". I doubt whether provocation would be regarded as an exceptional circumstance, but it has been relevant in some high-profile cases of murder and in England of manslaughter or in Scotland of culpable homicide where seriously abused wives have killed their partners. The fact that there have been so many such cases means that such circumstances are not exceptional, so courts will not be able to exercise discretion and ensure the justice that the public demand unless the discretion implicit in my amendment is accepted.

The Government introduced unit fines, but had to abandon them when the courts were obliged to levy fines that were disproportionate to the offences committed.

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If the Bill becomes law, I predict that within months there will be a public outcry about an automatic life sentence which will be regarded as manifestly unjust.

I conclude with the words of the 1990 White Paper, "Crime, Justice and Protecting the Public", which stated:

"The Government rejects a rigid statutory framework, on the lines of those introduced in the United States, or a system of minimum or mandatory sentences for certain offences. This would make it more difficult to sentence justly in exceptional cases."

In times past, the Government recognised the strength of the arguments against what they propose in the Bill. One can only conclude that with a general election looming they would rather be seen as tough on crime than as having a proper regard for the best interests of a civilised and just criminal justice system.

Mr. McFall: I commend the hon. Member for Orkney and Shetland (Mr. Wallace) for his eloquence and agree with much of what he said. We raised these issues in detail with the Minister in Committee.

On "exceptional circumstances", I refer the Minister to the debate in Committee on the Crime (Sentences) Bill, when the hon. and learned Member for Burton (Sir I. Lawrence) said:

"The words 'exceptional circumstances' will present an immediate and fundamental problem for the courts. We cannot foresee the problems that many phrases will cause. Had we foreseen problems with some phrases, we would have acted at the appropriate time. However, we can clearly foresee a problem with the phrase 'exceptional circumstances'."--[Official Report, Standing Committee A, 12 November 1996; c. 22.]

We pressed the Minister on that point in Committee, but he said that he did not wish to limit judicial discretion. He made that comment immediately after limiting the judicial discretion with mandatory sentences. The problem of "exceptional circumstances" remains to be cleared up. It is not enough for the Government to say that it is up to the judge to decide what are exceptional circumstances if they are not laid out in the Bill. The Government say that it is a matter for judicial discretion, but if that is so, why was judicial discretion taken away in the first instance?

In Committee the Minister said that he did not want to define "exceptional circumstances" because it would limit judges' discretion. However, this aroused concern even among Conservative Members, such as the hon. Member for Eastwood (Mr. Stewart), who asked whether "exceptional circumstances" applied to the prior qualifying offence or only to the offence under consideration.

The hon. Member for Perth and Kinross (Ms Cunningham) suggested that judges would be loth to define "exceptional circumstances" because they would be open to the right of appeal and their decisions might be challenged on appeal. There was much concern about that problem, not least from the Law Society of Scotland. It is incumbent on the Minister to explain the Government's thinking on "exceptional circumstances". For the life of me, I cannot understand why the Government are reluctant to elaborate.

The Pepper v. Hart case in 1992 meant that courts and others outside Parliament could refer to our debates to understand the intention of legislation. It is important to make the intention clear. I ask the Minister to address that and to ensure that he gives a satisfactory response;

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otherwise, judges will keep to the status quo and make no comment. The Government's aim in the Bill will thus not be realised, and I trust that he does not want that.

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