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The Lord Bishop of Worcester: Perhaps I may add to some of the points that have already been made on a matter that appears to me to go to the very heart of the Bill. This is a reminder to myself, which I am sure I do not need to give to other noble Lords, about the reason why it is considered necessary for Parliament to prescribe maximum sentences but not minimum ones. The reason is that the people's representatives have the task of protecting people who are vulnerable from the excesses of other branches of government. As a result of the interplay of the protections that are built into our constitution, we achieve something approaching justice.

It is not necessary to make speeches suggesting the infallibility of judges, for which I do not believe there is any more evidence than there is for the infallibility of bishops, but it is important to say that they have their task and we in Parliament have ours. I would be greatly concerned if we were to usurp the judicial function by not being in the business of protecting the vulnerable.

That brings me to the greatest difficulty in this matter. I expect the Minister to be very reassuring in her responses because I am sure that she believes that we have nothing to fear here. But what has so far been said in the debate illustrates why there are grounds for fear. There is a fear that different messages are being given in different places. In this Committee we shall give a reassuring message about the continued discretion of the judiciary, while out there on the hustings, in the newspaper columns, in the interviews on the "Today" programme understandably politicians of all parties will want to deliver a different message which is to assure the public that something is being done.

It is important that something is done and that the vulnerable in our society who become victims of crime should be protected, but not at the cost of the protection of people who, once they are in the dock, are in an extremely vulnerable position. In support of what is before us we need reassurance not just that the Minister who speaks in this Committee understands the sensitivities of the Committee on these matters, but that politicians generally are sensitive to the fact that they are easily trapped in an auction of toughness that leads to short-circuiting a whole host of protections, the loss of which we may have cause to regret deeply later.

4.15 p.m.

Lord Borrie: Perhaps I may follow some of the points raised by the reverend Prelate. The vulnerable in society include those accused of crimes and it is the job of the legislature to ensure that they are reasonably protected. In the context of crime, especially in this day and age, we must be concerned with the vulnerable people who are members of the public in general and

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the victims or alleged victims as well. Surely it is a matter—this is a point raised by the noble Lord, Lord Carlisle of Bucklow—on which we should not be so extreme as to say that judges must have complete discretion. It is admitted by those who have spoken that it is perfectly proper for Parliament to lay down maximum sentences. I believe that the noble Lord, Lord Carlisle of Bucklow, indicated that it is perfectly proper for Parliament to lay down context—I believe he used that word—and principle within which judges' discretion should be exercised.

As I see the scheme in this part of the Bill, there are three levels. First, there is the level of the legislature, which lays down certain principles and in certain cases indicates a minimum sentence below which normally judges should not go when dealing with particular kinds of offences that have particular qualities.

Secondly, there is the Sentencing Guidelines Council. Perhaps my only qualification for speaking in this debate is that I was once a member of the Parole Board. I remember with pleasure the fact that the Parole Board, concerning itself with sentences and the sentences that people should ultimately serve, consisted not simply of judges, but of strange people like myself and policemen, probation officers, criminologists and others. There would be a mixed panel of five or six people of whom one or two were judges, all bringing their various experiences to bear in relation to the sentence that should be served by the person whose bid for parole was up for consideration.

I mention that because we have a somewhat similar situation here. The Sentencing Guidelines Council is to have—so long as we oppose certain amendments that I notice are before us—a mixed membership of the kind that I have described. I mention that because already in our system we have certain features that suggest that not only judges should determine the final sentence that is served.

The third aspect of the scheme, apart from the legislature and the Sentencing Guidelines Council, is the judge. Surely, no one suggests in the Bill or elsewhere that the ultimate discretion will not lie with the judge in a particular case. He will bear in mind all the facts, the law and the mitigating circumstances that the defence counsel has put to him. All those matters will be considered and he should give reasons, which judges are well capable of giving, including for going above the minimum sentence, which the legislature may lay down in certain circumstances, as is being suggested.

Therefore, I do not see much difference. Perhaps I may be allowed to personalise my point—the noble Lord, Lord Carlisle of Bucklow, is a very old friend of mine. He talked about judicial discretion within a context. I do not believe that there is much difference between the two of us. The point is where to draw the line. The legislature, the Sentencing Guidelines Council and the judge in their various ways have their various functions which seem to be retained within this part of the Bill and there is nothing between us on that.

Lord Ackner: In considering the terms of this Bill, with particular regard to the independence of the

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judiciary, it is terribly important to bear in mind the background. One of the undoubted consequences of the recent constitutional upheaval is that the traditional office of the Lord Chancellor will be abolished. He and previous Lord Chancellors have agreed that the chief or essential function of the Lord Chancellor is to preserve or defend the judiciary. There is no present offer by the current Lord Chancellor that this obligation—note the words "chief or essential"—will be introduced into statutory form to bind him in those terms as Secretary of State for Constitutional Affairs.

There is a dangerous illusion that everyone supports judicial independence; but do they? I recently pointed out that that very question was answered by Lord Hailsham in a lecture he gave in 1989. I shall shorten the quotation as follows:

    "Certainly not the Opposition—whatever Party happens to be on the Speaker's left. Certainly not Party Conferences of any hue. And least of all I assure you, individual members of the Cabinet whose Departmental interests from time to time basically conflict, not only with the view of the judiciary, where they are entitled to differentiate, but in the provision of the means necessary to enable the Courts to discharge their functions!"

The judiciary is in no way hostile or resistant to input from Parliament or elsewhere in relation to the sentencing process. In the Crime and Disorder Act 1998, the Sentencing Advisory Panel was set up. Its function is to provide advice to the Court of Appeal, which the Court of Appeal is required to consider. Before the Court of Appeal issues guidelines, it must consult the panel. The panel consists of a chairman who is a professor and a variety of people, some sentencers and some, like probation officers, of general balance and intellect.

The panel's recent annual report shows that new guideline judgments covering a wide range of offences—rape, child pornography, possession of offensive weapons, domestic burglary and causing death by dangerous driving—have been promulgated with the support of the panel. In addition, the Lord Chief Justice used the panel's advice on minimum terms in murder cases as the basis for his Practice Statement as to Life Sentences in May 2002. That brings to 10 the total number of proposals from the panel that the Court of Appeal has now adopted.

The provisions of the Bill propose that the Court of Appeal should no longer issue sentencing guidelines. That action is to be carried out by a new statutory body called the Sentencing Guidelines Council. As originally drafted, the council consisted solely of sentencers, including a magistrate, and was presided over by the Lord Chief Justice. The Lord Chief Justice was quite content with the proposal. It involved no change to the constitutional convention that Parliament is responsible for establishing the sentencing framework—for example, the maximum sentences permissible—and it is for the judiciary to decide in its unfettered discretion how to arrive at individual sentences which appear to it to be just.

The current proposals represent an attempt by the executive to exercise inappropriate control over the sentencing process by diluting the sentencing council

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with non-sentencers, such as policemen and civil servants. This is despite the fact that judges have followed the Court of Appeal guidelines reasonably consistently and closely over the past few decades, and, in any event, if they impose sentences which are unjustifiably lenient, the Attorney-General had the right to appeal. Prior to this proposed legislation there was no mechanism for the court to consult Parliament before issuing a guidelines judgment and to have done so would not be consistent with our constitutional traditions. What is now proposed, despite no past action by the Attorney-General, indicates a lack of confidence in the judiciary and/or in the Attorney-General in failing to exercise his discretion, to which I have referred above.

I touch but briefly—I want to say a great deal more about it later—on Schedule 17. It purports to lay down "minimum starting points" in relation to murder cases, ranging from whole life, 30 years and down to 15 years, according to the category of murder subjectively chosen by the Home Secretary without any public consultation or advice from the advisory panel. Schedule 17 represent approximately a 50 per cent increase over the recently promulgated murder guidelines referred to above. Those guidelines had been previously submitted to the Home Secretary, the Lord Chancellor and the Attorney-General, who suggested only minimal modifications which were adopted. It seems to have been entirely overlooked that this very significant increase in the length of sentences will have a serious "knock-on" effect on other sentences for serious crimes, all of which will have to be "jacked up" for the pattern of sentencing on serious offences to be maintained. This distorts the task of the Sentencing Guidelines Council before it is established. Within a short period of time, because of the knock-on effect, prisons will be unavoidably beyond their capacity and incapable of coping.

The sentencing panel's functions will also become distorted since it will have to add a 50 per cent, or thereabouts, uplift to any new proposals it might make. Before leaving the sentencing panel, it is interesting to note from its annual report at page 9 that it has already made clear to Ministers that the panel has reservations about the current proposals to dilute the Sentencing Guidelines Council. While welcoming the extension of its remit to cover general sentencing proposals as well as offence-specific guidelines and agreeing that there is a need for non-judicial input into sentencing guidelines in view of the broader social and ethical issues involved, the panel points out that it already provides that input. Of its 12 members, only four are sentencers and it sees no need to duplicate the range of experience and expertise of the panel, which seeks comments and advice before it promulgates its proposals to the Court of Appeal and, in future, the Sentencing Guidelines Council.

The panel further points out that its main concern is that, if the new system is to work effectively, the council will need to command the trust and respect of the judiciary at all levels. With that in mind, it is

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anxious to avoid overlap or duplication between the constitution and functions of the panel and the council.

I respectfully submit that there is a great deal for the Government to answer to, but we shall come to more detail as we proceed to consider the important amendments that have been tabled.

4.30 p.m.

Lord Mayhew of Twysden: I intervene briefly to express my welcome for the amendment but my slight regret that it contains the saving words at the end,

    "save for the offence of murder".

When she replies, I hope that the noble Baroness will explain the Government's thinking about the offence of murder in the context of sentencing. I fear that that has been a bee in my bonnet for a long time, and I acknowledge that there has been some mitigation in recent legislation of the previous law that a Minister—a politician—determined how long someone should stay in prison because he had been convicted of murder.

We all know—it has been acknowledged today in the Chamber—that murder is infinitely variable in its culpability and wickedness. In the past, we recognised that in practice by allowing someone—until recently it has been a politician—to decide how long someone stayed in prison. Now, fixed lines are established in the Bill. I repeat the question posed by my noble friend Lord Alexander of Weedon: is not the real motive or engine behind the Bill's provisions lack of trust in the judges? If it is not that, I hope that the noble Baroness will tell us, when she replies, what it is.

As the noble and learned Lord, Lord Ackner, reminded us, we have now had for some years the jurisdiction of the Attorney-General to go to the Court of Appeal to say, "Look, this was unduly lenient". I hope and believe that that power has been exercised and has not been allowed to atrophy. As it happens, I introduced it when I was Attorney-General and used it. It has been used by every Attorney-General since, not least by the late Lord Williams of Mostyn, to whom we paid tribute this afternoon. So that discretion exists.

I therefore hope that the noble Baroness will tell us why that is thought insufficient and why the Government have become wedded to the notion of minimum sentences, the objection to which was graphically expressed by the right reverend Prelate 10 minutes ago, when he said, "Well, it is all right to fix a maximum, but minimums should be left to the professional, independent judiciary". I hope that the Minister will find time to deal with those points when she replies.

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