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Lord Burnham: I rise with a little diffidence after so many noble and learned Lords have expressed their views on this amendment and on the Bill in general. My concern is with what seems to be a major misunderstanding in relation to the purpose of this section of the Bill. I was particularly concerned that the noble and learned Lord the Lord Chief Justice should express his total support for my noble friend Lord Carlisle.

My noble friend talked of young, and implicitly innocent, burglars who might suffer as a result of the Bill. But they are young burglars with three previous convictions, after cautions, warnings and anything else that may have gone before. The noble Lord talked also of their good character. Can a man have a good character after three convictions? Surely, this is a Bill which is dealing with a confirmed and persistent criminal.

Members of the British public are the victims, and they have scarcely been mentioned in discussion on the Bill. The early parts of the Bill talk of sexual offences, drugs and burglary. If the Bill can help to reduce the incidence of those crimes, it will be worth while. The Bill emphasises the persistence of offending more than the seriousness of the offence. A later amendment seeks to take manslaughter out of the Bill. But three instances of manslaughter or grievous bodily harm must indicate that something is wrong.

It is clear that judges fail to understand the deep concern felt in this country about crimes of this sort. Even so, under the Bill judges will retain the right not to use the sentencing policy in "exceptional circumstances". The noble and learned Lord the Lord Chief Justice stated, quite correctly, that he and the Attorney General have the right to appeal if it is felt that sentencing in any specific case has gone wrong; but, after three convictions, a custodial sentence of some severity is unlikely to be wrong. It may be, in exceptional circumstances, and the Bill deals with that.

When discussing the firearms Bill, we were told that the public demanded it; and the Bill was passed this week in this Chamber. Members of the public have to face few Members of the Committee, including myself--whether or not they are noble and learned. The Bill addresses the major anxieties of those members of the public, who see these offences being committed around them all the time; they want just a little peace and quiet. G.K. Chesterton was right when he said:

"Smile at us, pay us, pass us; but do not quite forget. For we are the people of England, that never have spoken yet".

The same poem talks about the "staggering lawyer". I find the attitude of some lawyers quite staggering!

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The Bill goes a considerable way to achieving what those outside this Chamber want. The amendment weakens it and, with other amendments, takes us back virtually to where we are at the moment. The amendment should be opposed.

4.30 p.m.

Lord Ackner: When I listened to the indignant observations of the Home Secretary on the radio this morning, I realised yet again that I am but a child in these political matters.

The amendment seeks to achieve merely that a judge is given a discretion to match the punishment to the crime. I shall submit that Members of the Government Benches can, with a wholly clear conscience, support it. What it seeks to achieve was sought by my noble and learned friend the Lord Chancellor. He thought he had achieved it; but in fact he failed to achieve it because of his misunderstanding of at least the English meaning in the forensic context of "exceptional circumstances". Let me make that good.

The subject matter with which we are concerned is justice: justice in the administration of the criminal law and justice in relation to the imposition of sentences of imprisonment. The Lord Chancellor, by virtue of his great office, is deeply concerned that Parliament does not legislate in such a way as to prevent a judge doing justice or, worse still, to oblige him to do an injustice. That was the concern of the Lord Chancellor, who initially baulked at this legislation.

What happened? I can tell your Lordships by reference to an interview which my noble and learned friend the Lord Chancellor gave early in November and which was the subject matter of an article in The Times on 5th November. I have given the noble Baroness, Lady Blatch, notice that I would refer to this article. I have taken the precaution of speaking to the law correspondent to ensure that what she wrote was not the subject matter of any correction. Indeed, I have learnt that the interview was recorded in the Lord Chancellor's Department and a transcript of that recording was provided very helpfully to the legal correspondent.

The article is headed:

"Proposals for minimum sentences 'enable judges to deal justly with particular cases'".

Underneath that:

"Mackay has change of heart over Crime Bill".

There is then a very genial picture of my noble and learned friend. Underneath that is written:

"He admitted he had been behind some of the wording in the Bill".

The opening of the article is in these terms:

"Plans for tougher sentencing have won the crucial backing of the Lord Chancellor as they start their passage through Parliament. In a change of view, Lord Mackay of Clashfern says the Home Secretary's proposals on minimum sentences are now framed so as to meet the concerns of judges.

Lord Mackay, who had baulked at the idea of minimum sentences, said in an interview with The Times that the Crime (Sentences) Bill would enable judges to 'deal justly with particular cases'".

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A little later on, referring to exceptional circumstances, the article states:

"Lord Mackay said he had ensured that this phrase was included so judges could escape what they saw as a restriction on their ability to match punishment and crime.

'I expressed the view that one needed to consider that and the Home Secretary obviously did have that under consideration and this is the result of it,' he said. 'I think it enables them to deal justly with particular cases, while at the same time giving very clear warning to anyone who's contemplating a crime of this kind what the result will be, unless there are exceptional circumstances.'"

It is absolutely nothing to the point--certainly nothing to the point that I seek to make--that the Lord Chancellor was in error in his construction of "exceptional circumstances". The point which I want to make, and which I submit is of vital importance to your Lordships, is that the head of the judiciary, a very senior member of the Cabinet, recognised the paramount importance of the judge having sufficient discretion to enable him to match punishment with crime, an elementary requirement of justice. He thought, sadly wrongly, that he had achieved that by persuading the Home Secretary to put in just the simple words "exceptional circumstances".

That is why I have said that Members on the Government Benches can with a clear conscience support this amendment, because clearly it seeks to achieve that which my noble and learned friend the Lord Chancellor sought to achieve; namely, a sufficient discretion in the judiciary to enable them, and I quote again the words from the article,

"to match punishment and crime".

As it stands at the moment, they cannot do so; as it stands at the moment, there will be occasions when they are prevented from doing justice; as it stands at the moment, there will be occasions when they will be obliged to do injustice. For those reasons, I firmly support the amendment.

Lord Dean of Harptree: I rise as a non-lawyer and I take a somewhat different approach to these amendments from those noble Lords who have spoken in favour of them. I think it is generally agreed in the country that there is a strong feeling that the state is not doing enough to protect innocent victims from persistent and serious criminals. It is the main duty of any government to do their utmost to strengthen law and order and to ensure as far as they possibly can that citizens can go about their business without let or hindrance. In the circumstances we now face, the Government would have been failing in their duty had they not reacted to the increasingly serious situation.

It is well known that it is a cardinal principle of British justice that an accused person is innocent until he is proved guilty. We all respect that principle and expect the courts to uphold it. At the same time, in a debate of this kind it is very appropriate--indeed essential--to stress the plight of innocent victims. As your Lordships know, the amendments we are debating deal with repeat offenders who have been convicted of serious crimes which cause great injury and distress to innocent victims. I remind your Lordships that a person has to be convicted for a second time. In Clause 1 of

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the Bill, the serious crimes which are specified are sexual crimes, attempted murder, manslaughter, rape or serious wounding. One has only to mention these very serious crimes to realise the immense damage and harm they do to innocent victims and the fear they spread throughout the community.

In the case of Clause 2, the minimum sentence laid down is again for people convicted of a second offence for trafficking in hard drugs. How many promising young lives are blighted, sometimes for life, by this evil trade? In the case of Clause 3, the minimum sentence is for people who again have been convicted a second time for domestic burglary. All your Lordships know the mess and the misery caused by burglary to innocent victims who often have little prospect of recovering treasured heirlooms. In all these cases, as has already been pointed out, there is the important saving phrase,

"unless ... there are exceptional circumstances".

Edmund Burke, in a famous speech to his constituents in Bristol many years ago, said that a Member of Parliament is not a delegate or an acoustitude for his constituents. He is a representative and owes them his judgment. That means that he must not be over-borne by public opinion. But Edmund Burke also said--and this was long before universal suffrage was introduced--that a Member of Parliament must take very careful note of public opinion. Indeed, this is an essential element in the parliamentary and democratic system upon which we pride ourselves. It is all the more important when we are dealing with intensely serious matters of this kind.

I believe that this Bill is necessary to respond to the present situation. It seems to me that the amendments would greatly weaken the essential principle of the Bill. For that reason, I shall vote against the amendments.

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