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Baroness Anelay of St Johns: The Minister is absolutely right to direct the attention of the Committee to Clause 154 (7), which provides that the Secretary of State may by affirmative order change the age at which drug testing will be imposed. I did not follow her with as much enthusiasm when she described statutory instruments subject to the affirmative procedure as being stringent parliamentary scrutiny. I come closer to the views of the noble Lord, Lord Carlile of Berriew, that they are less than perfect in that they may not be amended. I have some injuries borne from previous parliamentary debates in relation to another department. I found that the department had cleverly constructed a statutory instrument subject to the affirmative procedure; parts of it were so benign that they were all welcomed by the House, but other parts were so objectionable that the House would have liked to dispose of them but was not able to amend them.

I accept the direction to subsection (7) but it may not be sufficient for all. In listening to the Minister's response I am grateful to her for the careful explanation. At this stage I do not intend to return to the issue on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 166AA to 167A not moved.]

Clause 154 agreed to.

Clause 155 [Powers to order statement as to offender's financial circumstances]:

Baroness Scotland of Asthal moved Amendment No. 168:

The noble Baroness said: This group of amendments stands in my name. Amendments Nos. 168 and 219 seek to change the maximum penalties for two offences relating to the provision of false statements regarding financial circumstances for the purposes of sentencing. These alterations of penalties have been made to ensure consistency in approach so that the relatively minor offence of providing false statements may only be punishable with a non-custodial penalty. The change in maximum penalties will make them compatible with the new sentencing framework.

The effect of the amendments will be that the maximum penalty for these offences will be a level 4 fine. Amendments Nos. 218B, 219A and 246B make similar changes to the offence of providing false statements in Section 84 of the Magistrates' Courts Act so that it will no longer be imprisonable. The maximum penalty for this offence will therefore be a level 4 fine or a tough non-custodial penalty.

Amendments Nos. 218C and 219B make the necessary changes to ensure that an offence of knowingly or recklessly making a false statement will continue to be an

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imprisonable offence. This offence is more serious than those to which the previous amendments relate and concerns behaviour such as not disclosing a criminal record on a naturalisation application. It is therefore considered to be of sufficient seriousness to justify a maximum penalty of 51 weeks' imprisonment.

Amendment No. 239AA ensures that the offence of disclosure of information may attract a maximum penalty of six months' imprisonment prior to the implementation of custody plus and the related changes to maximum penalties. After this time it will attract a maximum penalty of 51 weeks' imprisonment.

I wish to speak to Amendment No. 218A in the group, which is in the name of the noble Baroness. It seeks to retain imprisonment for two offences. Those offences are not considered to be of sufficient seriousness to justify a custodial penalty and in more serious circumstances the conduct to which they relate is covered by higher levels of offences.

Abusing or neglecting children or putting them in situations where they are exposed to danger is an offence under Section 1 of the Children and Young Persons Act 1933, and carries a custodial sentence of up to 10 years' imprisonment. Cruelty to animals, including infuriating, ill-treating and causing unnecessary suffering, is an offence under Section 1 of the Protection of Animals Act 1911, and carries a custodial penalty of up to six months' imprisonment. That maximum penalty will automatically be increased to 12 months' imprisonment when the new sentencing framework is implemented.

To obviate the need to trouble the noble Baroness further in relation to Amendment No. 218A, I can assure her from looking at the statistics that since 1933 there has been only one example of a prosecution for the offence of causing a person under 16 years of age to be used for begging. So we have had 100 years of freedom. I beg to move.

Baroness Anelay of St Johns: I want to deal briefly with Amendment No. 218A. It was tabled for two purposes: first, to elicit the precise explanation that was given by the Minister, which, as I understand it, was not to worry because in fact there are more serious penalties that can attach themselves to these offences if they are so proved; and, secondly, it is a way to probe the principles which guided the Government in making up this very long list in the schedule. Is the general principle underlying this list that those offences are covered by other occasions where more serious penalties can be imposed?

Baroness Scotland of Asthal: It is. Perhaps I may use colloquial language for a moment: it was an opportunity to tidy things up and to make sure that we rationalised these offences in a way that was appropriate and made sense. We seek to create a new framework which will be clear and easy to apply. This very much helps us to do so. I thank the noble Baroness for tabling the amendment as it enabled me to give her the explanation she sought.

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On Question, amendment agreed to.

Clause 155, as amended, agreed to.

Clause 156 agreed to.

Clause 157 [Fixing of fines]:

On Question, Whether Clause 157 shall stand part of the Bill?

Lord Carlile of Berriew: Perhaps I may simply probe the noble Baroness on Clause 157(1). My question is whether that imposes any additional obligation upon already hard-pressed magistrates' clerks and understaffed Legal Advisory Services to carry out any further paper inquiries before cases are heard.

I recall an occasion when one of my daughters took a northerly turn along Great Portland Street in a part of the street which permits only southerly travel. As a result she found herself before the Marlborough Street Magistrates' Court. When she was very politely asked by the stipendiary magistrate about her means she said that she was living as a student on finite fatherly funding that specifically excluded fags and fines. If we are talking about that kind of inquiry, which is customary at the present time, there is no problem. However, it would be invidious if we were to impose yet another paper burden upon justices' clerks to send out yet more forms in cases which, unless people are totally impecunious, attract the same penalties more or less whatever the means of the offender.

4.15 p.m.

Baroness Scotland of Asthal: First, I commend the noble Lord on his daughter's appreciation of the exclusion of fags and fines. This provision does not change the legislation that we have already enacted in the Powers of Criminal Courts (Sentencing) Act 2000. The position remains the same. The noble Lord need not be troubled.

Clause 157 agreed to.

Clauses 158 and 159 agreed to.

Clause 160 [The Sentencing Guidelines Council]:

Baroness Anelay of St Johns moved Amendment No. 168A:

    Page 95, line 34, leave out from "members" to "appointed" in line 35.

The noble Baroness said: In moving Amendment No. 168A, I shall speak also to Amendments Nos. 169, 169A, 169B, 170 to 172N, 173A, 173B, 239B, 239C and 250A. Most of those amendments stand in my name but some are also in the name of the noble and learned Lord, Lord Ackner. Amendment No. 250A is a government amendment.

My noble friend Lord Renton has just asked me whether I had an objection to such a large grouping. I had to confess to him that it was done with my agreement. As I explained to the Committee on Monday, there are a few occasions in our considerations in Committee where we have agreed to a large grouping, simply because it gives us the opportunity to debate some of the major issues which concerned the Chamber at Second Reading. In considering them, we hope that the

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Chamber may find itself able to act as the arbiter, as we were asked to do by the noble and learned Lord the Lord Chief Justice.

Although this is a large group of amendments, it deals with a single issue—the membership and operation of the Sentencing Guidelines Council to be established by the Bill. We on these Benches welcome the establishment of the council. However, we have proposed the large number of amendments because we wish to address the concerns expressed about the detail of the Government's proposals.

On listening to the Home Secretary on the radio and television I understand that he is often given to pulling the tail of these Benches. He said that in another place my right honourable friend Mr Letwin agrees with the Government and then these Benches simply go about pulling the Government's plans apart. That is not so. Even though the noble Lord, Lord Borrie, assents, I have to disagree with him. When we agree with the Government in another place, we always clearly point out any reservations. At the moment this Chamber is still able to have time to express those reservations and to give the Government the opportunity fully to persuade us that they are right. So we wait to see.

The group of amendments gives the Committee the opportunity to consider the issue both of the membership of the council and of the role of Parliament in scrutinising the guidelines that it will produce. At this stage I make it clear that all these amendments are probing. I want to consider fully the Government's response before I decide what amendments to bring back on Report and on which to take action.

This is one of the crucial issues in the Bill where it appears that there is a difference of opinion between the executive and the judiciary. We have tried to reflect upon the arguments advanced on both sides of the debate. I refer, in particular, to the arguments put forward by the noble and learned Lord the Lord Chief Justice at Second Reading and in the paper which he deposited in the Library of this House.

When the Bill was first introduced it provided for the council to have only judicial members. In another place the Government introduced amendments to provide for a number of non-judicial members. The judiciary's view on the membership of the council has been made clear by the noble and learned Lord the Lord Chief Justice. At Second Reading, he said:

    "If the council is to carry real clout, as it must if it is to be effective, its membership should be confined to the judiciary".—[Official Report, 16/6/03; col. 574.]

I invite the Committee to reflect carefully on the words of the noble and learned Lord, which contrast markedly with the assertion of the then Minister at the then Lord Chancellor's Department that the membership arrangements now in the Bill would:

    "maintain the confidence of the Court of Appeal and the judiciary more widely".—[Official Report, Commons, 20/5/03; col. 915.]

If the council is indeed to be a lasting innovation and have a positive impact on the criminal justice system, as we certainly hope, its recommendations must

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command the confidence of the judiciary. Equally, they must command the confidence of the public. It is clear that the present arrangements, which provide for no scrutiny of sentencing guidelines, do not command that widespread and full public confidence which is necessary if the criminal justice system as a whole is to command respect.

So our solution before the Committee today tries to take both those factors into account. The Government's proposed membership of the council is wide. We would restore their original position—the Government's position in another place—namely that the council be composed only of sentencers. That is the key concern of the judiciary and, mindful of the objective of ensuring public confidence, the amendments then provide scrutiny of the guidelines by a Joint Committee of both Houses of Parliament. Thus, the public, police, victims' groups and others involved in the criminal justice system should gain an input into the process through their representatives in Parliament.

In another place, the Government made much of the need for parliamentary scrutiny of the council's proposals, but the Bill provides no statutory mechanism for such scrutiny. My amendments would therefore give statutory backing to the Government's commitment to parliamentary scrutiny given in another place.

On Report in another place, the Government's view on requiring all the guidelines to be subject to the affirmative procedure in Parliament was that:

    "It would be inappropriate to ask Parliament as a whole to debate and vote on the detail of every sentence. There is a huge value in not asking Parliament as a whole to vote on every single guideline".—[Official Report, Commons, 20/5/03; col. 916–7.]

We agree. So in drafting the amendments and building on proposals made by the Opposition in another place, we have taken that view into account. A vote in both Houses on every piece of guidance would not occur if our amendments were incorporated in the Bill.

The parliamentary scrutiny procedure proposed in the amendments would operate as follows. The Sentencing Guidelines Council would send its draft guidelines to the Joint Committee of both Houses. The Joint Committee would then have six weeks to consider whether to refer the guidelines back to the council. If it did not decide to refer the guidelines back, at the end of the six-week period, they would come into force through a negative resolution statutory instrument. If the Joint Committee decided to refer the guidelines back to the council, the council would then consider the committee's reasons for doing so when making any amendments to them. It would then resubmit the guidelines to the Joint Committee, which would have a further six weeks to consider and, if necessary, send the guidelines back again. If there was a clear disagreement between the Joint Committee and the Sentencing Guidelines Council and the guidelines were referred back for a third time, Parliament should act as the arbiter.

The amendments provide for the affirmative resolution procedure to apply to the guidelines in such a case. Thus the guidelines would be formulated by sentencers but scrutinised and endorsed by Parliament. We hope that the procedure established by the amendments would strike a balance. The guidelines

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would be formulated by judges but scrutinised here in both Houses in the form of the Joint Committee. In that way, we have tried to provide a mechanism that will retain the benefits of the Bill's proposal while ensuring that the process will command the confidence of the judiciary, Parliament and the public.

My right honourable friend Mr Oliver Letwin said of the Bill at Third Reading in another place:

    "One of its best elements, although we have not quite agreed on its form, is the process that it seeks to establish for deciding on sentences. We can argue about the precise format of the process for agreeing sentences, but it is common ground between the Government and us that there needs to be a transparent and proper process so that none of us wakes up on a Monday morning and suddenly discovers that the guidelines have been altered, that the Home Secretary and the Lord Chief Justice are locked in mortal combat. Indeed, combat should be avoided on the whole in the proceedings of this nation".—[Official Report, Commons, 20/5/03; col. 970.]

My amendments seek to avoid any confrontation and combat; they seek to provide a pragmatic answer to the questions that have been posed in both Houses; and I hope that they achieve a consensus. I beg to move.

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