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Lord Renton: Although my noble friend said that this is a probing amendment, it is an important one. For a number of years, there has been a tendency for Parliament, on the advice mainly of civil servants, to have a few offences punishable by fixed sentence. Some of those are compulsory, without the alternative of probation or any other non-custodial or financial punishment. Judges and magistrates acquire their own wisdom and judgment on whether the sentence for a particular offence should be flexible or fixed.

Circumstances continually change. A particular offence may have been committed regularly over a short time but it is wrong to assume that that will continue and to fix a sentence. I agree with the terms of the proposed new clause and believe that judges should have discretion in the determination of all sentences, save for the serious matter of murder. Therefore, while supporting what my noble friend said, I believe that we should go a stage further.

Lord Dholakia: I am delighted that we have reached the most important aspect of the Bill; that is, the general provision on sentencing. We are in general agreement about the new clause proposed in Amendment No. 160BAA by the noble Lord, Lord Kingsland, relating to the judges' discretion in sentencing. We

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supported the Halliday review which set out the constructive and rehabilitative approach to sentencing. Unfortunately, much of the impact has been lost by the Home Secretary's insertion of late amendments into the Bill. The amendments are designed to set a minimum sentence for murderers, fettering the discretion not only of the judiciary but of the sentencing council, thus questioning its independence even before it has been set up. The paramount principle is that each case before the court is unique—it has its own characteristics—and the person who can weigh all the evidence is the judge. Therefore, sentencing is for the discretion of the judges.

Where do we stand on sentencing? One of the aspects often advocated is that the primary aim of any sentencing policy must be to promote the rehabilitation of offenders, recognising the lower success rate of custody in preventing re-offending; developing custody-plus sentences as an alternative to conventional imprisonment; promoting the use of restorative justice which gives the victim greater involvement; and supporting the vital role of the probation service in reducing re-offending.

When we look at the proposals in the Bill, the Government often try to make us believe that the objective of reforms to the criminal justice system should be to increase the number of convictions. Change a process here; reduce the rights of the defendant there—many more people who go to court will be convicted and everyone will be happy. But the current failure is not that once people get into court they are not convicted. Three out of four crimes across the country—seven out of eight in London—never result in anyone being convicted.

I turn to the main argument behind the amendment; independence of the judges. I believe that that is the final safeguard. Ministers' attitudes, policies and proposals are in danger of undermining the independence of our courts. Parliament decides maximum sentences but it must be for independent judges, not party-political Ministers, to decide what particular punishment fits what particular crime.

The independence of judges is not the enemy of the political process. The independence of judges is the defence of people in this country who have no written constitution to defend them against the potential tyranny of the authorities in the abuse of power of the state. If the criminal justice process is to be replaced and valued to the full, it is imperative that it is rooted in the community. This is why independence of the judiciary must be at the heart of any legislation on sentencing.

Lord Carlisle of Bucklow: My noble friend Lord Kingsland, in opening the debate, said that the purpose of the amendment is to give an opportunity to look generally at the philosophy or the policy behind sentencing and who should have the say in sentencing under the Bill. Having attempted to read Part 12, I believe that it is verbose, complex, in many parts self-contradictory and platitudinous. I cannot believe that it is necessary to have anywhere near the number of clauses or words relating to setting out sentencing guidelines that we have in the Bill. I believe that it could be simpler.

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The noble Lord, Lord Kingsland, said that we are concerned about where the balance of statutory control of sentencing lies between the judiciary and the legislature. I have no doubt that in this Bill that balance has been moved substantially to the disadvantage of the judiciary. Therefore, it is vital that we have an opening clause, such as that in the amendment, under which the right of the court and the judge to try and sentence the offender convicted before him with full discretion is maintained.

We have recently heard much talk about the independence of the judiciary. It has been in terms of the independence of the judiciary as against the appointment of the judiciary. We have heard the Government rightly claiming their belief in the importance of the independence of the judiciary. But the independence of the judiciary, if it is to mean anything, must mean not only independence of appointment but independence on sentencing within the framework set down by Parliament. It is not the role of the legislature to set the sentence. The role of the legislature and Parliament is to set the context in which the sentence is passed and to set the maximum penalty to show the gravity attached to the offence.

The sentence passed in any case must ultimately be the individual decision of the judge. He is the only person who has had the opportunity of hearing the whole of the evidence, of seeing the defendant and of hearing what is said on his behalf. He is the only person who is in a qualified and trained position to do justice in sentencing.

I admit that I am totally opposed to mandatory minimum sentences. I opposed them from the Benches opposite when Mr Michael Howard attempted to introduce them in his Bill in, I believe, 1995–96, and many of the proposals were defeated in this House. I believe that mandatory sentences lead inevitably to injustice because they cannot take account of all the various aspects and different features that occur in every case.

The Bill asks in general terms: what are the aims of sentencing? Of course it is right that imprisonment should be a matter only of last resort and that, if imprisonment is imposed, the sentence should be as short as possible. But, at the same time, the Bill is contradictory because it requires that courts must take into account the deterrent effect of a sentence. That may mean that the sentence which a judge was minded to give to meet the facts of an individual case may not be sufficient to meet the deterrent effects to the public as a whole.

I hope that when we debate this matter on Report, we shall consider in detail the Government's answer today and listen with care to what the Minister says. However, I hope that we shall never reach the situation where the Home Office tries to impose on judges the sentence that should be given. The detail in this part of the Bill effectively goes as close as it can to a system of mandatory sentencing without actually introducing such a system.

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4 p.m.

Lord Renton: Before my noble friend sits down, I wonder whether he will allow me to add to his very valuable contribution by pointing out that sometimes an offence is prevalent in one part of the country but scarcely ever committed in another. The judge sitting in the part of the country where the offence has become prevalent should have not only a power but a duty to impose a stiffer sentence than might be imposed elsewhere.

Lord Carlisle of Bucklow: Clearly the judge who tries a case has the opportunity to take into account all the features and, frankly, I do not believe that he needs to be told, as Clause 136 seeks to do, what is meant by the seriousness of the offence. He will decide the seriousness of the offence inevitably using, as I said, many of the platitudinous matters referred to in that clause. However, he is the person who decides and he takes into account, as magistrates do, other local, as well as national, matters. They are bound to do so. I say again that I believe that, the wider the discretion a judge has, the greater justice prevails.

Lord Monson: I know of at least some second and third-world countries which fetter judicial discretionary sentencing. However, admittedly as a complete layman, I know of no western democracies that do so, with the obvious exception of minimum sentences for murder and minimum periods of disqualification for certain motoring offences. If I am mistaken and if the imposition of minimum sentences is commonplace in many first-world countries, I should be grateful if the Minister would give some examples when she comes to reply.

Lord Alexander of Weedon: I agree with everything that has been said by, in particular, my noble friend Lord Carlisle of Bucklow. It seems to me that this matter warrants debate because it is a constitutional change. As has just been pointed out, apart from the mandatory sentence for murder, which itself has given rise to some considerable cause for anxiety and suggestions for change, effectively the principle has long been clear in this country that Parliament, when it legislates, sets the maximum sentence. Up to that maximum the courts, with the priceless advantage of having heard the facts of the case, decide what the correct sentence should be.

Therefore, if we are trying to consider this issue as a matter of principle, I believe we are hindered by the fact that it has been introduced in a way that seems to be increasingly essential for the introduction of constitutional change in this country. It has been introduced with speed at a late stage in the consideration of a Bill and it has not been the subject of prior consultation.

If those are now the characteristics of the approach to constitutional change taken in this country, this debate gives an opportunity to invite the Minister, who is keenly conscious of the importance of law within our society, to slow down and open up the debate. She and I, and I believe almost all the previous speakers, share the values

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that have been so epitomised in the tributes this afternoon—the values of passionate and independent care about the law. And much more unites those of us on these Benches, the Minister and those who sit with her who have those values than divides us on that issue of principle.

Therefore, I move on to ask whether this is—I put this as gently as I can—another illustration of the current Home Secretary not feeling sufficient confidence in the judiciary. Whether intentionally or not over the past year, he has certainly created the public impression that his confidence in at least some judges is less than total and that he is reluctant to accept without public challenge some of the decisions that they reach.

If there is a belief that judges do not do their job properly—that they are too soft—I consider that that belief should be out in the open. I am not clear what other basis there can be for this proposed legislation. It seems to me that underlying it is the broad approach which simply says, "We do not trust the judges to sentence sufficiently stiffly". This comes oddly in a society whose gaol population stands at a record level and where we are told that new massive prisons must be built. It is difficult to see at the same time both that judges are being too soft and yet that the prison population is rising. I believe that Home Office predictions are that it will rise very much further over the next few years.

The Minister knows perfectly well from her experience, as I do, the infinite variety of cases which involve the same crime. Some apparently minor crimes can, on examination, appear to be rather more serious, and some in the other category can, when examined carefully, have their seriousness diminished. When the facts are taken into account in litigation, they can provide another compelling reason for a sentence which, in the view of some members of the public, may be on the soft side but which is right when the facts are examined closely.

I would not be surprised if the Minister, like me, has on many occasions valued the fact that sentences are passed by judges who are experienced and skilful and who try to maintain a balance between the proper need to reflect society's concern about an offence and the proper way of treating an individual. I suspect that, like me, she will have been very glad that that exercise has been carried out, after close examination of the facts, by someone of great skill and experience.

I anticipate that in response she may say that that will be perfectly possible in the future. The judge will be able to do that and give reasons why he or she goes below the minimum. In turn, I would respond that in that case why do we need a minimum? Perhaps the Home Secretary believes that the enactment of a minimum sentence will make it more difficult for a judge to pass the right sentence if he believes that it should be below what is considered in the minimum sentencing standards to be the appropriate sentence. At one and the same time it cannot be possible to say that we trust the judges and that we are not inhibiting them in any way, but none the less we need to impose

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by statute these legislative principles. I do not pretend to know all the answers as to how that evolved, but I suggest that in a proper civilised society such as ours the matter should be dealt with by consultation first rather than by a rush into legislation.

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