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The challenge for the official Opposition—I know that there is a debate on this issue with my colleagues in the Liberal Democrats—is to make the judgment, which is a very fine one, as to whether we follow the use of suspended sentence orders, as previously planned, or whether we make the change today. I hope and believe that colleagues in the Liberal Democrats will reflect carefully on this issue. I came to know the hon. Members for Somerton and Frome and for Cambridge during consideration of the Bill in Committee—I am sure that the hon. Member for Eastleigh, who is also on the Liberal Democrat Front Bench today, will reflect on these matters, too—and they have discussed this issue and pressed me, the Under-Secretary of State for
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Justice, my hon. Friend the Member for Liverpool, Garston (Maria Eagle), and my right hon. Friend the Secretary of State for Justice, the Lord Chancellor, to look at greater use of community sentences for short sentences.

I am of the firm view that if we delete clause 10 today, it will lead to greater use of custody sentences, rather than community sentences. Again, there is a fine judgment to be made, and we are willing to reflect on it, as the later amendments will show. However, and without wishing to pre-empt what the hon. and learned Member for Harborough and the hon. Member for Cambridge, who leads for the Liberal Democrats, will say, I believe that they have some sympathy with this point; they know that the community sentence is a positive and a difficult sentence—one that will still be difficult for the offender.

The Parliamentary Under-Secretary of State for Justice (Maria Eagle): More difficult.

Mr. Hanson: My hon. Friend makes a very valid point. In some cases, it is more difficult for the offender, because they have to come to terms not just with their behaviour but with some of the demons that may well have driven them to it, whether they be drugs or alcohol. They may have to come to terms with doing pay-back work in the communities that they live in or perhaps with providing reparations to people whom they have worked with. There could also be a range of other options that constitute difficult sentences for them to undertake, but which may well—this is the key point, which I ask Members to bear in mind when they vote on the motion—mean that they keep their job or may keep their family together, in due course; help them get off the drugs or alcohol that caused them that difficulty in the first place; or help them to come to terms with their offending behaviour in a much more enlightened way than a short custodial prison sentence would. I say that with all due respect to my colleagues in the Prison Service, for which I am also responsible.

That is a debate that we must have across the board. Today’s proposed change regarding suspended sentence orders is about whether we look at the facts—the facts are that custody remains stable and the use of community sentences and fines has dropped—and whether or not we support another place in removing this provision from the legislation.

Let me be open and honest—I always try to be honest in these matters, as you know, Mr. Deputy Speaker—and say that the proposals before the House today will, in the longer term, save 400 prison places. There are two key related issues. It is no secret in this House that the prison population has been under pressure for some weeks and months, or that we are undertaking a massive £2.5 billion building programme over the next five to six years. It is no secret that we are going to increase the number of prison places to 96,000 by 2012-13, or that we are looking at trying to support community sentences in a much more effective way. However, it is also no secret that the next few months will be challenging, and that we have predicated our projected figures for the use of prison places on the fact that clause 10 will be in the Bill, and that those 400 prison places will be saved over the next couple of years by the actions taken through clause 10.

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I know that the hon. and learned Member for Harborough may well say that we should have built earlier, and that we should have done this and done that, and I know that there will be lots of arguments about those issues

Mr. Edward Garnier (Harborough) (Con): You will probably agree with me.

4 pm

Mr. Hanson: That is for another day, dare I say it. The key point is that however we have reached where we are—this week marks the first anniversary of the Ministry of Justice—throughout the planning that we have undertaken since June last year, from the publication of this legislation, through its Commons Committee stage and its passage through another place and back into the House of Commons, there has been discussion about those 400 people who would not go to prison if this clause is in place.

May I welcome you to the Chair, Mr. Deputy Speaker? You will know that if we were to remove clause 10, 400 people who are not in prison could be in prison over the next couple of years. I believe that we will have to face that problem. We would have to build a whole prison for those additional places. We would be talking about an additional 400 places, additional costs, prison officers, support staff and a prison-building programme if we were to remove clause 10.

Irrespective of the case that I am making, the facts show that, to date, the suspended sentence order has not worked in the way in which we intended it to do, the use of custodial sentences as opposed to community sentences is more detrimental in short-term cases and an additional 400 people will be in prison as a result of the removal of this measure from the Bill. All that drives me to believe that it should be kept in the Bill, as proposed.

Let it not be said that I am somebody who will not listen on behalf of the Government, because some very valid points have been made in the debate to date —[Interruption.] I missed that.

Mr. David Burrowes (Enfield, Southgate) (Con): Empathy.

Mr. Hanson: I shall not say that I do not intend to listen.

I began my introduction to this group of amendments by saying that I believe that a strong case has been made and that it can be proved by the facts, the general direction of Government policy and the impact on prison places. However, I recognise that discussion has taken place in another place about the clause’s impact and that both there and in Committee there was debate as to whether what I say will happen will happen. I do not base that only on what has been said in another place; I have to listen to the evidence brought forward by the magistrates courts and the Magistrates Association, which have again said that they believe that they may well up-tariff rather than down-tariff if this measure goes ahead.

I believe that I am on strong ground and that we have a good case to make, but I am also aware that doubts have been expressed as to the precise impact of
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the clause and I want, as far I am able, to acknowledge those concerns in a real and positive way. If hon. Members were to look at the Order Paper, they would see that in the light of those concerns, I have proposed amendments that provide for a power to suspend the amendments to section 189 of the Criminal Justice Act 2003 made by the clause; that is to say, it would restore the power to impose a suspended sentence order in summary-only cases if it should appear necessary to do so. Again, I hope that that is helpful.

If I did decide to bring forward an order in circumstances that allowed me to impose suspended sentence orders in summary-only cases again, such an order would be made by an affirmative procedure and would also allow the clause to be reactivated in due course. I hope that the power in the Government amendments will give us the opportunity to take forward what will be a useful measure; it will test whether my contentions work and it will give the Government the power to put down an affirmative procedure and allow the clause to be reactivated in due course if that were not to prove the case. Again, I cannot envisage such a situation, but I need to reflect upon whether or not the clause would have unanticipated consequences.

The amendments that I have tabled would provide a swift response, should those unanticipated consequences arise, and would introduce the affirmative procedure, so it would not simply be a question of the Minister making a decision and hon. Members having to pray against the clause. The affirmative order-making power would allow both the removal of the suspended sentence order policy, which we have already debated, and reactivation in due course, if that were required.

The amendments are not a concession but a clarification, and I hope that they will give sufficient comfort to the hon. and learned Member for Harborough and to the hon. Members for Cambridge and for Eastleigh. In the event of the consequences predicted in Committee, we could take swift action to rectify the situation. The Government’s second amendment has the same purpose and is aimed at enabling service courts to keep in step with the policy applicable in magistrates courts.

I have spoken for more than half an hour to ensure that I make the case for the original change in clause 10. I have backed my case up with figures that show that sentencing over the past three years has been as I have described. We need to examine in detail the possible consequences of removing the clause, not just for prison places—a key factor—but the impact on the 400 individuals who might be sent to prison instead of receiving a community sentence, or on reoffending.

I hope that I have also shown that we recognise the concerns expressed in the other place. We have empathised with those concerns and tabled amendments accordingly. If the action that I have outlined does not turn out to be satisfactory, the amendments will allow us to make changes. I look forward to hearing from the hon. and learned Gentleman. I hope that he reflects on what I have said and I hope that his party and the Liberal Democrats will support the amendments that I have tabled.

Mr. Garnier: The Minister is nothing if not disarming. During the course of his 36-minute speech, he told us on three occasions that he was honest—even that he was open and honest. I have never suggested—or even thought—that he was anything other than honest. It
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may be that the instructions he receives from his masters cause him to say things that he would prefer not to say, but I salute him for the way he performs sometimes disagreeable duties. This must be one of those difficult occasions.

It is necessary to deal with the substantive issues before us and to respond to the Government’s invitation to disagree with the other place. We wish to sustain the objection to clause 10 and to retain the power of magistrates courts in summary cases to impose a suspended sentence if appropriate. It is not always appropriate to order that a defendant be given a suspended sentence. Sometimes it is more appropriate to impose an immediate custodial sentence although, on most occasions for summary offences, it is most appropriate to impose a community sentence or an even lighter sentence. I am afraid that the Government are in something of a muddle, not least because they are seeking to undo something that they put into law only with the Criminal Justice Act 2003.

If you had plenty of spare time, Mr. Deputy Speaker—and I do not think that you have—you would be able to look at the 2003 Act and see how little has remained on the statute book in the way promised by the then Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett). My memory may be defective, but I suspect that about half that legislation is either not in force any more or has never been implemented. Other parts have been amended, so the Government’s approach to the 2003 Act, which was said to be the best thing since sliced bread for the courts service and the criminal justice system, has been somewhat chaotic.

Right at the end of 2005, the Government implemented the power in the 2003 Act enabling magistrates to give suspended sentences in summary-only cases. The criminal courts could not use the power until 2006, and the fact that this Bill was introduced into the House in the autumn of 2007 means that the system had been in operation for barely a year before the Minister wanted to change it.

I am not sure that I am convinced by the evidence that the Minister produced. Even if his figures are correct, I am not sure that they help his argument. It may be true that common assault cases have led to more suspended sentences in the magistrates courts, and that the numbers of fines and conditional discharges for such cases have fallen. It may also be true that the proportion of suspended sentences handed down in drink-driving cases may have risen from 1 per cent. in 2005 to 3 per cent. in 2006, but I am not at all sure that any of that helps the Minister’s case.

Suspended sentences are either a useful weapon in the sentencer’s armoury, or they are not. I plead guilty to being a sentencer. I have been a Crown Court recorder for the past 10 years or so, and in appropriate cases I frequently make use of suspended sentence orders. They are an especially useful weapon: the sword of Damocles hangs over the defendant, keeping him out of prison in the immediate term and allowing him to continue to support family and dependants—and, with any luck, to keep his job. One benefit of the 2003 Act was that it allowed a court to attach to the suspended sentence order requirements that are akin to those attached to community sentences. That combination is very useful, as it can act as both spur and deterrent to the defendant.

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Andrew Miller (Ellesmere Port and Neston) (Lab): I have been listening carefully to the hon. and learned Gentleman. He spoke of weapons in the armoury, but does he accept that magistrates courts would benefit from having that armoury broadened?

4.15 pm

Mr. Garnier: Yes, I think I do. I am not sure which part of my remarks that intervention touches on. No doubt the hon. Gentleman will help us further later. There is a confusion in the Government’s case, and I am not entirely sure whether the hon. Gentleman shares that confusion.

The suspended sentence will still be available to magistrates in either-way cases. Let us say that someone is charged with aggravated vehicle-taking—that is to say, with taking a vehicle without consent and causing criminal damage. If the value of the damage is more than £5,000—if the car is damaged to the tune of £5,001—that is an either-way matter. In that case, the magistrates can give a suspended sentence. However, if by some chance the defendant causes less than £5,000 of damage, the magistrates cannot give him a suspended sentence, although to all intents and purposes the nature of the offences and the effect of the damage on the victim are pretty much the same. An arbitrary number decides whether or not the magistrates have the power that the Government wish to take away from them.

We need to be pretty clear on that point. Suspended sentences are to be removed simply for summary-only offences; as I understand it, they are being left in place for either-way offences and for the Crown courts. Why are suspended sentences being taken away only for summary-only offences? The Government’s argument was set out fairly concisely in the letter from the Minister, which I received by e-mail this afternoon—I am grateful to him for that. I would be the first to admit that the letter does not contain a single factual inaccuracy, but it does not quite deal with the whole story. The whole story began to be revealed, at least in part, towards the end of the Minister’s remarks today—in about the 28th, 29th or 30th minute of his speech—when he mentioned prison figures. Of course, the basis of the Government’s argument has nothing whatever to do with wanting to improve the justice system and everything to do with wanting to prevent further chaos within the prison estate.

It is very nearly a year since the Department was set up and since the new Lord Chancellor took office. Since then, there have been any number of quick fixes designed to reduce the prison population, including early release from custody under the ECL, or end of custody licence, scheme. At some stage—I cannot remember whether it was before or after the Department was set up—there was the introduction of home detention curfew, and the Criminal Justice Act 2003 introduced automatic release at the halfway point in a custodial sentence. Despite all those measures, panic or otherwise, the prison population has gone up and up. It now stands at a record. When the Government came to office, the prison population was about 61,000; it is now 82,500.

You will remember, Mr. Deputy Speaker, that when ECL was introduced at the end of June last year the Government promised that they would release 25,500 prisoners early in order to reduce the overall prison
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population. I do not know how they managed it, but as a consequence of what they have done, the prison population has gone up.

We are now considering another measure, introduced in the Bill last year in spite of all the evidence from practitioners, sentencers and others who take an interest in and have knowledge of the subject, that the Government think will free 400 prison places. I am willing to make a small wager that even if the measure passes into law and magistrates are denied the power to give suspended sentences for summary-only offences the prison population will not decrease, and those 400 prison places will soon be filled by other people. I advise the House not to put much faith in the Minister’s suggestion that the measure is a good idea because it will free up 400 prison places.

Mr. Hanson: The point that I am making is that whatever the rights and wrongs of the decision and whether or not it is linked to prison places, the consequence of removing clause 10, as proposed in another place and supported, I understand, by the hon. and learned Gentleman, is that those extra 400 prison places will be required in the next 12 to 18 months. That will add pressures to the prison population rather than alleviate them, whether as a deliberate policy or simply as a consequence.

Mr. Garnier: I am grateful for the Minister’s intervention. It cannot be gainsaid that whatever the Government do in relation to sentencing and in attempting to relieve the overcrowding in prisons, which is at an all-time high, nothing seems to relieve the problem, and the measure will not do so, either. The Government have been hoist by their own petard. They wish to look tough in the eyes of the British public and to look capable of dealing in a hard way with those who commit crimes, but they are not. All they have done is fill the prisons, and the offending and reoffending percentage rates continue to be in the high 70s and 80s, whether those are custodial or community sentences.

In order to convince us, the Government—at the same time as removing the power of magistrates in summary cases to award suspended sentences—would have had to propose a much more robust and respectable community sentence system. They have not done so. There is no point in their dismantling one part of the system if they do not replace it with something better in the community sentence system.

It is a mistake to confuse a suspended sentence and a community sentence. The two are entirely different, although they may have certain elements in common. As the Minister has candidly, openly and honestly accepted, the suspended sentence is part of the custodial regime. It is not the equivalent of a community sentence and one should not be given a suspended sentence unless one has crossed the custody threshold.

If the Minister says that magistrates are passing sentences of suspended custody for offences which in the past would have attracted a community sentence, the answer, as he half-admitted in his remarks, is not to throw away the suspended sentence power but to improve the training of magistrates. The Government should pass fewer Bills and devote their time and energy to making existing legislation work, not least because the thing that they now seek to destroy has been in force only since 2006.

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