David
Howarth: Technically, one could multiply the two together,
or divide one by the other, depending on how one wants to do it.
However, the hon. Gentleman is right that that linking seems to put
cost first and relative effectiveness second. The right hon. Member for
Cardiff, South and Penarth has made that point in certain of his
amendments, which would move the reference to “relative
effectiveness” to the top of the list in clause 102. That was
the whole point of some of the
amendments. The
hon. and learned Member for Harborough referred several times to
amendment 257. It could be argued that the amendment is not needed
because it is implied already in the Bill and generally in practice,
but it would be helpful to state that under the current
system—this is what the right hon. Member for Cardiff, South and
Penarth said—individual judges are not required to take into
account the availability of prison places in individual cases. That is
not at all intended; and it is very important to rule it out. Resource
allocation questions should be built into the construction of the
guidelines. After that, the application of the guidelines should be a
matter of legal interpretation, not of getting judges to carry out
economic assessments of the effects of particular sentences. That would
be quite wrong, which is why, if the hon. and learned Gentleman
presses his amendment 257, I shall support
him.
Maria
Eagle: I shall do my best to deal with this wide-ranging
debate, which is now a stand part debate on the whole of part 4,
chapter 1. I shall also deal with the amendments tabled by my right
hon. Friend the Member for Cardiff, South and Penarth and those
referred to by the hon. Member for Cambridge, which come slightly
later. The
amendments raise a number of basic issues. First and foremost, I would
like to make it clear that this part of the Bill establishes a new
body—the sentencing council for England and Wales—and in
doing so implements the recommendations of the working group chaired by
Lord Justice Gage, on which my right hon. Friend the Member for
Knowsley, North and Sefton, East sat. He provided us with a very useful
run-through of the working group’s intentions, and I agree with
his points, although I shall not repeat them because he set them out
very
well. The
intention is not to fetter the proper sentencing discretion exercised
by the independent judiciary; nor is it to tie sentencing decisions to
the wider issue of the availability of prison places or of any other
type of sentence, despite the fears that have been raised by the hon.
and learned Member for Harborough and others during the evidence-giving
sessions. I want to make it very clear that that is not the
Government’s intention. As I think that he accepted at the
beginning of our remarks, ours is an evolutionary approach, as
recommended by the working group. It builds on the good work of both
the Sentencing Advisory Panel and the Sentencing Guidelines Council,
which will have completed most of the major guidelines by the time that
the new council starts work. Their work will be used as a foundation on
which to develop a better understanding of sentencing practice, and
will increase our ability to predict the impact of guidelines and
inform the wider role of the new council.
The working
group consulted widely on its recommendations, to which we are now
giving effect, and there was strong support for an evolutionary
approach, despite one or two of the revolutionary things that the hon.
Member for Cambridge was edging his way towards in his remarks. We have
not had a major falling out on that evolutionary approach. Nobody is in
favour of the US-style sentencing grid, whether it is from South
Carolina or Minnesota, and we all want to build on the good practice in
respect of what is there, because we believe that guidelines help
sentencers. It is intended that the sentencing council will enhance
consistency, make sentencing more open, ensure that the public
understand and have confidence in sentencing, and generally be an
improvement on the current arrangements. However, there will be a
requirement on the council to prepare guidelines on the reduction of a
sentence for a guilty plea on the application of the totality
principle, which is necessary for the council to meet its duty to
monitor the operation of guidelines under clause
110. It
has been suggested that what we are trying to do is unduly
prescriptive: that clause 102 causes resources to be taken into
account, that clause 103 has too rigid a sense of an arrangement for
setting out the format of guidelines, and that clause 107, with its
duty to follow guidelines, completes the coup d'Ã(c)tat of the
destruction of the independence of sentencers. I am exaggerating only
slightly some of the concerns that have been expressed. That is not the
intention. When it draws up guidelines,
the council must have regard to current sentencing practice, to the
needs to promote consistency in sentencing and public confidence in the
criminal justice system, to the cost of different sentences, to their
effectiveness in reducing reoffending and to the council’s
monitoring of the application of its
guidelines. My
right hon. Friend the Member for Knowsley, North and Sefton, East set
out how little information was available to the working group when it
started its work, so we can all see the sense of the monitoring that we
are trying to get the new sentencing council to do. Apart from the
monitoring, all the other arrangements are already there. There is not
a requirement on the council to have regard to resources when drawing
up or revising guidelines. As well as my saying that, my right hon.
Friend the Secretary of State for Justice has made that clear on Second
Reading. We do not resile from
that. Let
me deal with the question of whether the format of the guidelines is
too prescriptive, and other matters to do with clause 103. The clause
provides that where a sentencing guideline relates to a particular
offence, such as robbery, it must divide the offence into levels of
seriousness based on the offender’s culpability and on the harm
caused. That clause sets out the format of offence-specific guidelines.
It does so because clause 107, about which some concern has also been
expressed, places a duty on a sentencer to follow the guidelines. So
clause 107 makes it clear that a sentencer must indicate how he has
followed the guidelines by reference to the ranges. Courts need to know
that they have to follow the guideline range for the seriousness of the
offence before them. That is necessary to meet the principle of
promoting consistency and predictability, which was highlighted in the
Gage
report. The
format also reflects the way in which the offence-specific guidelines
are currently framed by the Sentencing Guidelines Council, so there
will not be an enormous departure from the practice in respect of the
current arrangements. All the current offence-specific guidelines
issued by the SGC already comply with the format set out in clause 103.
However, because concern has been expressed about these matters, and
because we have a record in this Committee of listening to concerns
expressed by all Committee members, we are willing to look at clause
103 to ensure that there is sufficient flexibility in circumstances
where this format might not be practicable. I give that undertaking to
the Committee and hope that that might allay some of the concerns that
have been
expressed. Concern
was expressed about clause 107 and the duty to follow guidelines. Of
course, that is a central provision of this part of the Bill, which
sets out that the court must, in sentencing an offender, follow any
relevant guidelines unless it is satisfied that it would be contrary to
the interests of justice to do so. That provision attempts to give
effect to the Gage report recommendation to enhance the current
departure from guidelines test from a duty to have regard to guidelines
to a duty to follow guidelines, unless it is in the interests of
justice not to do so. However, again, the Government are willing to
consider any amendments that might improve that clause or allay the
concerns that have been expressed.
We certainly
thought that having the ability to depart from guidelines in the
interests of justice would guarantee judicial discretion in individual
cases. We do not believe that the clause limits discretion, but we are
willing to go away and think about this, and if members of the
Committee, or others, want to suggest something that they think would
be better, we will consider
it. 5.15
pm
Mr.
Garnier: That is extremely helpful, but we heard from
magistrates in the evidence session, and I know from my conversations
with judges, that they are concerned about the way in which clause 107
is phrased. Are the Government looking for further amendments to those
that we have tabled, or will they, of their own initiative, be tabling
revisions to clause
107?
Maria
Eagle: We will be looking to come up with better
formulations, but we are perfectly willing to listen to and meet anyone
who has any ideas. Indeed, the Under-Secretary of State for Justice, my
hon. Friend the Member for Lewisham, East, and I met magistrates before
the Bill progressed to this stage, and I think that they left her room
rather more reassured than when they entered it. None the less, we are
willing to continue considering how best to ensure a balance between
consistency and judicial discretion, because that is the prize that we
all seek. We do not want to end up just with what we have, because it
can be improved, and we are not trying to fetter discretion on
sentencing in individual cases. Nor are we trying to do more than was
set out in the report of the Gage working group, which we seek to
implement. I am not going to argue that we have got it all completely
correct.
Mr.
George Howarth: My hon. Friend is being very thoughtful in
her response, but does she agree that, regardless of any amendments
that she might consider making at a later stage, the phrase
“contrary to the
interests of justice”
in clause 107(1) gives
quite wide
discretion?
Maria
Eagle: Yes, it does give wide discretion, but there is
clearly some concern about that wording and concern that the
clause’s overall impact, in connection with the perceived impact
of other clauses, will be to fetter discretion too much, but that is
not our
intention.
David
Howarth: For those of us who think that the effective
prevention of reoffending is the crucial issue, another concern is that
the wording “the interests of justice” does not seem apt
to cover what we are worried about. We could have a phrase about it
being “in the interests of society” instead. The Minister
is right to reconsider that
wording.
Maria
Eagle: I think that the wording “the interests of
justice” will cover an awful lot of territory in a courtroom
setting.
Let me close
my general remarks on the stand part debate by making it clear that the
new duties on the council to assess impact are not intended to mean
that it has to take account of resources in drafting or revising its
guidelines. This is about the council providing additional
information that can be used by Government to plan for the demand on
prison places, community orders and new justice
services. Jeremy
Wright: The Minister has said twice now that there is
nothing in the Bill to suggest that the sentencing council should take
resources into account, but surely, clause 102(11)(d) must mean that
when the council is setting sentencing guidelines for the judiciary to
follow, unless it is in the interests of justice for it not to do so,
it must consider the “cost of different sentences”.
Surely, we cannot divorce that concept from the concept of having
regard to resources.
Maria
Eagle: There is nothing wrong with having an understanding
of the cost of different sentences, but that does not imply that we
should start setting guidelines that use only the cheaper sentences,
which is obviously what the concern is. It is not the intention of the
Government to try to fetter the work of the council in that
way.
Alun
Michael: I read that as saying that the sentencing council
should look at cost and effectiveness and balance the two. That is not
unreasonable at that stage of consideration. My problem is that the
effectiveness of sentencing only comes in as a balancing factor with
cost, rather than being the prime thing about which the council needs
to be
concerned.
Maria
Eagle: Yes, and the point that my right hon. Friend makes
brings me neatly to dealing with—the hon. Member for Cambridge
is now going to throw me
off.
David
Howarth: I hope not. The way I read paragraph
(d)—in fact, the whole of clause 11—is that the relative
costs and effectiveness of different disposals are relevant. What the
sentencing council is not taking into account is the budget—the
estimate—for the Ministry of Justice. It does not take into
account the total. It just takes into account the relative
effectiveness and costs of different kinds of sentence, which seems
eminently
reasonable.
Maria
Eagle: I agree with the hon. Gentleman, after all of that.
I now regret being unpleasant to him
earlier. I
would like to move on to the points that my right hon. Friend the
Member for Cardiff, South and Penarth made about his amendments. It
seems some time ago that he moved them. Briefly, there are, in effect,
two groups within the amendments, which, as he said, are designed to
give greater prominence to the role of reducing reoffending in the
creation of sentencing guidelines. The first set, which includes
amendments 150 to 153, deals with the role of reducing reoffending in
the creation of guidelines, and the second set, which includes
amendments 158 and 160 to 162, aims to make experience of reducing
reoffending a significant factor in the recruitment of members of the
council. That is just to remind members of the Committee what he
said.
First and
foremost, I have a great deal of sympathy with what my right hon.
Friend and the hon. Member for Cambridge have been saying about the
impetus and motivation for the amendments, which is that some
expertise in and understanding of what reduces reoffending is important
when considering sentencing guidelines. I do not disagree with that at
all. However, I am not convinced that the amendments are the best way
of injecting that into our system. To answer the hon.
Gentleman’s point about the Government’s approach to the
amendments, I do not think that we are at all apart on the importance
of that in the overall scheme of things, but I am a bit concerned about
the impact that the amendments would have on the work of the council. I
shall briefly explain
why. Amendment
150 would add a statutory purpose for the sentencing council to issue
guidance to sentencers and would place a requirement on it to have
particular regard to the effectiveness of sentences. It suggests that
the primary role of the council should be to issue sentencing
guidelines, but that is not its only purpose, of course. It has other
purposes, and all its functions are important. I have some concern
about the impact of trying to specify in statute that one is more
important than
another. Amendment
151 would put the need to have regard to the effectiveness of reducing
reoffending at the head of the list of factors that the council must
have regard to when drawing up the guidelines, but there is no order of
precedence in the factors at present. It must have regard to all of
them. I think that it could create an imbalance and confusion if we
start saying that it must think of one as more important than another.
That is another worry that I have about the formulations used by my
right hon. Friend. To say that there must be specific regard to one of
the factors when other factors need to be considered might cause
confusion and unduly downgrade some of the factors that have to be
thought about. We do not want to do
that. That
is not to say that we do not accept and understand my right hon.
Friend’s point about the importance of having an understanding
of what reduces reoffending injected into the system, as he and the
hon. Member for Cambridge have both explained. Section 142 of the
Criminal Justice Act 2003 requires a court that is dealing with an
offender to have regard to the reform and rehabilitation of offenders,
as well as to punishment, crime reduction, public protection and
reparation. There is a general requirement on all sentencers to have
regard to such matters, and we need to build on that, rather than skew
the way in which the new sentencing council is to
work. Amendment
153 requires the council to have specific regard to the effectiveness
of reducing reoffending and to indicate the evidence on which it relied
in producing its guidance. However, if evidence is not available or if
its relevance to sentencing for a particular offence under
consideration is dubious, it could prevent the council from issuing
guidelines, which we would not necessarily want to
do. Although
we want the council to have regard to evidence-based information that
is available and relevant in order to inform its
guidelines—including comparative research materials from other
jurisdictions, for example—we do not see it as the
council’s role to commission its own research into the
effectiveness of different sentencing outcomes, because that simply is
not one of its functions. That is the responsibility of the Government,
and it is not something that we were planning on transferring to the
council under the Bill. The Government are committed
to reducing reoffending, and their responsibility
for building up a knowledge base on what works for
reduced reoffending remains and will be implemented under our own
research programmes. The amendments
on the composition of the council would probably introduce more
confusion that we would like. I understand my right hon.
Friend’s thinking behind them, in that he is trying to make sure
that the personnel doing the job have sufficient knowledge of what
works and what can be done to reduce reoffending. However, having
independent members appointed by the Prime Minister or members approved
by resolution of the House, and overturning what is currently a planned
judicial majority, would give us cause for
concern. Twenty
members might be a little unwieldy. The current Sentencing Guidelines
Council has 12 members; the Sentencing Advisory Panel has 15 and the
current plan under the Bill is that the new council should have a
judicial majority, albeit small. My right hon. Friend’s
amendment would make the majority non-judicial and would increase the
number of members of the council. It is important to have the benefit
of non-judicial members, but it is also important to have the
confidence of the judiciary in the sentencing council. On that basis,
we have decided that, albeit small, there should be a majority of
sentencers on the council. That is the best way in which to retain the
confidence of sentencers while enabling the proper reflection of the
wider views of the
public.
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