The Committee's Role
8. In June 2002 the then Leader of the House wrote
to the then Chairman of the Committee to canvass our participation
in a consultative or scrutinising capacity. He suggested that
"a bridge is built between Parliament and the Council in
order to enable Parliament properly to contribute to those guidelines
whilst preserving the proper independence of the Council".
The purpose of the proposed role, he added, would be for Parliament
"to offer observations, advice and suggested amendments to
the Council. This will provide an effective means for the views
of Parliament to be taken into proper account while respecting
the judicial independence of the Council".[8]
9. We have agreed to carry out this role of reviewing
draft guidelines. We do not envisage our function as being to
give or withhold formal approval of each guideline, or to provide
extended analysis of its contents, but to focus on particular
issues of concern or interest to Parliament or the public. Where
we consider that a draft guideline raises major issues, we will
make a report to the House on these. In the case of other guidelines
we will supply our comments to the Council in the form of a letter
from the Chairman, which we will also publish on our website.[9]
10. We consider that there may be some circumstances
in which it would be desirable for draft guidelines which raise
particularly important or sensitive issues to be debated in a
forum which other Members of the House could attend. The Government
has agreed in principle to the proposal that draft guidelines
should be referred, where need arises, to a standing committee
on delegated legislation.[10]
This proposal raises procedural and other issues which require
further consideration. An alternative possibility would be for
this Committee's report on a draft guideline to be debated in
Westminster Hall on a motion for the adjournment. This is an issue
on which we may make further recommendations in due course.
11. In July 2004 we took oral evidence from the Lord
Chief Justice, Lord Woolf, in his capacity as Chairman of the
Council.[11] We are grateful
to Lord Woolf for giving us this opportunity of discussing sentencing
issues and the work of the Council with him, and for indicating
that he supports the idea of our holding similar sessions with
the Lord Chief Justice on an annual basis—perhaps shortly
after publication of the Council's annual report.[12]
12. We wish to comment on the particular issue of
timing. When we originally undertook to scrutinise draft guidelines,
this was on the basis that the public consultation period on each
guideline would be two months. Unfortunately, the first two draft
guidelines have not been supplied to us on this basis. They were
sent to us on 25 August 2004, under embargo until publication
on 17 September, and with a request that responses should be submitted
to the Council by 27 September.
13. We queried this very truncated timescale with
the Council. In response the Head of the Council Secretariat,
Mr Kevin McCormac, acknowledged that this was "a highly unusual
timescale … driven by the importance of ensuring that the
guideline [on seriousness] is available to the judiciary when
they are being trained to implement these provisions". He
undertook that "we would expect all future consultations
to provide for the two-month period previously discussed".
However, he did not address the issue of whether any of that
two-month period would be under embargo.[13]
The Council subsequently indicated that it had deferred consideration
of the first two guidelines till its November meeting in order
to allow the Committee more time to discuss them.
14. We are grateful to the Council for this extension
of its original deadline. However, we believe that it is important
that in respect of future guidelines, the Council should give
all its consultees the full two-month period for scrutiny. It
is also essential that that two-month period should follow
publication of the draft guideline, and not be subject to any
embargo. This will allow us and other consultees to consult
other interested parties, and will reinforce public confidence
that the consultation process is being taken with due seriousness
by the Council. In this respect we note that the Government's
own guidance to departments on consultation exercises is that
the minimum period for public consultation is 12 weeks.[14]
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