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Lord Macaulay of Bragar: It is your Bill.

8.45 p.m.

Lord Mackay of Drumadoon: The noble Lord, Lord Macaulay, suggests that it is our Bill. This Bill has been debated over a long period of time in another place. I am sure that the noble Lord will have read the report of the deliberations on the Bill in another place: what was said at Second Reading and on Report but, most particularly, what was said during the seven or eight days of Committee stage there--

Lord Sewel: Are we going to hear all that now?

Lord Mackay of Drumadoon: I have no intention of unnecessarily repeating all that was said then, but I resist the criticism implied by the offstage comment of the noble Lord, Lord Macaulay, that this is our Bill. There has been ample opportunity for the Opposition to table amendments of this nature if they deemed that appropriate. They did not do so in Committee, on Report or at Third Reading in another place. Indeed, I may be wrong, but I believe that this amendment stands in the name of only the noble and learned Lord, Lord McCluskey, so it is not only rather late in the day that--

Noble Lords: No!

Lord Mackay of Drumadoon: I am sorry. Perhaps I am wrong and if so I stand corrected. Indeed, I see that the name of the noble Lord, Lord Macaulay, is also to the amendment. Although there may be some significance in the order in which the names appear, I fully accept that the amendment stands also in the noble Lord's name.

To return to what I was saying, this amendment comes very late in the day. It is not one upon which the Government until now have thought it appropriate to consult. It was obvious from the issues raised at Second

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Reading that there had been no consultation on the matter. The amendment is tabled. I am unaware of any support from other members of the judiciary that this significant change in practice should take place. As I recall, the noble and learned Lord, Lord McCluskey, in moving the amendment, based the case upon experience in New South Wales in particular where inadequate prison places had been provided before the legislation was brought into force. That is contrary to the position as we will have it. He also relied on experience in America. Having discussed that earlier, that too is contrary to what the Bill is about. The lateness of the amendment should hardly persuade the Committee that it is appropriate to incorporate this major change.

I have so many notes before me.

Lord Hope of Craighead: While the noble and learned Lord is sorting out his notes, perhaps I may try to assist the Committee. I apologise for not being present when the noble and learned Lord, Lord McCluskey, moved his amendment. While I do not support the amendment, perhaps I may make one or two points to put the matter in perspective. The amendment reveals a very important point about the difference in function between the judge on the one hand and government on the other. As far as concerns judges, continuity in sentencing patterns is of great importance. The judiciary is frequently criticised for failing to be consistent in the imposition of sentences. Nothing is more conducive to confusion in the public mind than a sudden reduction or increase in the nominal sentence that is imposed for a particular crime. That was what underlay the view of Lord Ross, which I entirely shared, and formed the basis of my advice to government, when asked, that it was not right for judges to alter their view about the length of sentence that was appropriate for a particular crime.

On the other hand, there is the responsibility of government to consider what should be done with the prisoner after the sentence has been imposed. If it is a custodial sentence part of the function is to keep the prisoner in custody in suitable conditions for as long as may be appropriate. But the very important philosophy that has underlay the policy until now is to try to rehabilitate the prisoner and, by that means, prevent reoffending. It was for that reason that the Kincraig Committee thought it appropriate to improve and redesign the measures for the early release of long-term prisoners but coupled with conditions to ensure that any such release was on licence.

I believe that the use of phrases such as "honesty in sentencing" and, with the greatest of respect to Lord Ross, the description of the function of a judge as a "charade", tend to overlook the fact that the nominal sentence remains with the accused until it has been exhausted. It is true that in many cases half-way through the sentence parole is given and the prisoner is released. If the prisoner reoffends or a licence condition is broken the prisoner can be brought back. One sees increasing use being made of Section 16 of the Prisoners and

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Criminal Proceedings (Scotland) Act 1993 to require prisoners who reoffend during a period after release to serve additional periods in custody.

I believe that nowhere more dramatic can this difference in function be seen than in the imposition of life sentences. What strikes one as a most extraordinary paradox is the flag that the Government appear to wave in this part of the Bill in favour of honesty in sentencing--that is to say, making sure that the prisoner remains in custody for as long as possible--while at the same insisting in Clause 1 that a life sentence should be imposed in a situation where everyone knows that no one will be required to serve a sentence of life imprisonment. It is a complete misnomer of the sentence that is imposed under Clause 1 and it demonstrates, without being unduly critical of the Government, that in this field the idea of searching for honesty in matching the time spent in custody with the length of sentence imposed by the judge is not something that is capable of being achieved if the broad aims of custodial sentences are to be maintained.

That is part of the background. That was the reason why I took the view--perhaps my successor will take the same view--that it was undesirable that judges should be told by Act of Parliament to reduce or increase the length of sentences to match what the Government believed to be appropriate for the early release, or for reducing the earliness of release, of prisoners who had been sentenced to custodial sentences.

I believe it was suggested by the noble and learned Lord that this matter could be dealt with in other ways. He suggested that it might be done by means of an act of adjournal, a practice direction or by the court. It is important to reflect on these matters because they place the amendment of my noble and learned friend in context. As far as concerns an act of adjournal, I considered that question in connection with another matter, which I need not describe to the Committee. I took the view that it was not right for the court in its administrative capacity--which is what an act of adjournal is all about--to direct judges what to do in their judicial functions. Sentencing is pre-eminently a judicial matter and an act of adjournal deals with rules of procedure. That is a quite different chapter as regards the way in which the court runs its affairs.

As far as concerns a practice direction, the objection was even stronger. A practice direction is made by the senior judge--which I was--in his administrative capacity. I took the view that it would be quite wrong for me by means of a practice direction to direct the judges, who were all independent, about what they should do in matters of sentencing. Indeed, I fully expected that any direction I gave on that matter would be disregarded, very properly, by those judges to whom it was directed. The only solution would be for the court by means of its decisions, taking full account of the structure of legislation for the time being and all its implications, to give guidance so that judges and sheriffs would know what the court regarded as the appropriate length of sentence. The noble and learned Lord the Lord Advocate will be able to confirm that machinery is now in place for the court to issue decisions which will have

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the effect of giving practice guidance to judges about the length of sentences. It may be that in the course of appeal hearings the court will by that means be able to give directions to judges as to what to do. But I warn the noble and learned Lord the Lord Advocate and others who may be interested that I believe the court would be very cautious about giving a direction of that kind because of the unpredictability of Government policy. In the few years that the Act has been in operation we have seen the sharpest change that I can recall in the treatment of the early release of prisoners. It would be highly embarrassing if the court reacted to the provisions enacted in the 1993 Act with a view to ensuring that longer sentences were pronounced and then found itself trapped by a change of government policy which could not be corrected until the court issued a fresh decision.

The purpose of these remarks is to say that, with great respect, my noble and learned friend has raised a very important issue, but it is not a matter for the judges. The judges would be well advised to maintain continuity in their sentencing and, in that way, ride out the sudden changes in policy, whatever they may be. If honesty is looked for it must come from government. It may be that the Government have fallen down by failing to explain to the public what policy they now want to abandon. I stress that the most dramatic example of a breach of the principle of honesty is to be found in Clause 1 which is the Government's flagship measure. It is extraordinary to find that principle being used as the reason for the whole chapter of measures that the Committee is about to consider.

9 p.m.

Baroness Carnegy of Lour: Before my noble and learned friend replies, I hope that he listened to the final sentences spoken by the noble and learned Lord, Lord Hope. They put the position most clearly and certainly helped me. However, in my view, if ordinary people in Scotland take the point that the Government, with due consideration to what the public want and what can be done, are changing policy about sentencing and changing the framework within which judges must operate, they allow or have inflicted upon them an amendment which says, "Yes, but don't do it. Make it as though it hadn't happened and then all will be well.". That is not the way Scots think at all. I do not understand why the English think like that, but we certainly do not.

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