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Lord Ackner: There is a great risk here of the situation being overcomplicated. Before the Bill was drafted and for the past two or three decades, the Lord Chief Justice, starting with Lord Lane, grouped together cases to be considered by the Court of Appeal, which enabled him and his court to lay down guidelines. Some years ago, I deposited a book of them in the Library. They have never been criticised. They have been there for all to see. The only criticism that has arisen is recently, with regard to burglary, where the Lord Chief Justice was misunderstood—I shall not say misread, but not adequately read—and those criticisms were put right.

So, for decades, the judiciary has dealt with the matter without criticism. Indeed, when one considers the length of time during which the Attorney-General has had the power to intervene if sentences were seriously below what they should have been and how little use he has made of this power, there could be no better indication that the previous position has worked perfectly well.

The judiciary has indicated, through the Lord Chief Justice, that it is not averse to receiving and considering advice from those who want to give it. I think that it was in 1998 or 1999 that the Sentencing Advisory Panel was set up. The panel was and is presided over by a professor; a Member of this House is also a member of the panel; and it has the advantage of a number of lay members.

The panel's function is to put forward its view on guidelines. To obtain the necessary material on which to base a recommendation, it consults any parties that it thinks may be interested and have a contribution to make. In other words, the panel goes out to the public to say, "Tell us your views; we should like to know". There is your transparency. The Court of Appeal is required to have regard to the advice from the panel in laying down future guidelines and if the Court of Appeal is minded itself to take the initiative, it is obliged to consult the panel.

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On Monday, I referred to the fact that there are 10 particular classes of cases that have been the subject matter of advice from the panel which has been adopted by the Court of Appeal and guidelines promulgated based on them. The panel was asked for its views on sentences involving the most serious kinds of crimes; in particular, murder. It produced guidelines of which the Court of Appeal was in favour. They were submitted to the Home Office, the Lord Chancellor and the Attorney-General, who suggested small modifications that were incorporated. Last year the guidelines were brought into force by a practice direction issued by the Lord Chief Justice.

A perfectly simple arrangement existed before the legislation whereby the Court of Appeal, after due and proper consultation, laid down by a transparent process guidelines that were in no way criticised. Then comes this legislation, under which the Court of Appeal is no longer to perform the task that it has carried out without criticism for many years. Instead, there is to be a Sentencing Guidelines Council presided over by the Lord Chief Justice. Originally, it was to consist purely of sentencers. The Lord Chief Justice was prepared to accept that arrangement because it would be the Court of Appeal differently constituted that issued its guidelines after all the proper consultations.

Then, to the profound irritation of the Home Secretary, the Judicial Committee of this House decided that a Member of the Cabinet, or a politician of any kind, had no proper input as regards how long a person should stay in prison. It decided that it was a judicial matter to be dealt with by the judges and that, accordingly, the Home Secretary should no longer interfere with the judiciary's advice in murder cases.

We know from debates in this House how unceremoniously the Home Secretary reacted. He showed, I am sad to say, a complete misapprehension of the basics of the rule of law, overlooking entirely the fact that the judges in the House of Lords were performing their obligatory function of applying the rule of law. The Home Secretary fell out with the Lord Chancellor on the matter. The Lord Chancellor, before a committee of this House, made an observation to the effect that it was inappropriate for the Government to cheer when the courts produce a decision of which they approve, and then to attack judges when they produce a decision of which they disapprove. Their function was to go to the Court of Appeal. Indeed, an appeal was pending when the Home Secretary made his intemperate observations. Another case went to the Court of Appeal, which upheld the decision of a judge on a matter, relating to immigration, which particularly got under the Home Secretary's skin.

The Home Office then sought a clearer input in sentencing to be made by Parliament. It therefore seeks to set up the Sentencing Guidelines Council under this legislation. But it now seeks to add laymen to the Sentencing Guidelines Council. It does not propose a majority of laymen—not yet—but the

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Home Secretary wishes to take the power to vary from time to time, as he thinks it appropriate, the component parts of the council.

The panel to which I referred on Monday last represented to the Minister its dislike of the situation on the grounds that it was being duplicated by laymen on what should have been a judicial committee. The following question arises: why should not any of those highly desirable non-judicial members be on the panel? The panel is the source of advice from the public and can be insulated from Parliament, so the input would be entirely by the panel.

The noble Baroness, Lady Anelay, has not referred to judicial discretion. How is that to be safeguarded? The judges are to lose, or have lost, for practical purposes a champion or semi-champion in the shape of the Lord Chancellor. The Secretary of State for Constitutional Affairs has offered to take on a statutory obligation to look after the judges. But he has not offered to take on what was the declared and accepted obligation of the Lord Chancellor—that safeguarding the judiciary should be his main or essential duty. I would be very surprised if that obligation was acceptable to the Secretary of State.

It seems entirely unconstitutional that the Sentencing Guidelines Council, having taken the advice of the panel and heard all that it should do from the public, should send the matter back to Parliament so that it has the last say on the judicial function of sentencing. Parliament sets up the framework, which is the maximum sentence, and the judge's function, subject to the intervention of the Attorney-General and the Court of Appeal, is to sentence justly according to the facts of a particular case. The suggestion that there should be resubmitted to Parliament the proposed decision of the Sentencing Guidelines Council is an interference with the discretion of the judiciary.

In the past I have referred noble Lords to my experience as one of a team of judges sent by the Council of Europe to Russia, shortly after Russia had freed itself from its Communist bonds, to take part in a sentencing conference with Russian judges. I had met a Russian judge—the chief justice of Russia—at a conference a couple of years before in Kuala Lumpur. He was judge Terribilov and I have little doubt from his size and general manner that he lived up to that name. However, on this occasion they were interested in the European approach to justice. I learnt of the existence of "telephone judges", who, before they embarked on a trial, were rung up by the prosecution and told that their function was to find the person guilty. The appropriate sentence was spelled out.

Strangely enough, about a year later, at a dinner given in the Cavalry Club by the former Attorney-General, Lord Rawlinson, I sat next to the chief Russian prosecutor, with an interpreter sitting behind us. I innocently asked about the "telephone judges" and he said, "Yes, quite right. Having done all the research into a crime, we aren't going to allow the judges to mess about with the proper result"—hence, the "telephone judges".

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I am not suggesting that we have reached that stage, but we are moving towards it. In Britain, judges are permitted to make the initial decision. They do not refer it back to Parliament and Parliament does not make the final decision about the right answer. I am sorry to disagree with the noble Baroness, Lady Anelay of St Johns, but it is nonsense. A simple process is being turned upside down largely because of the irritation of the Home Secretary in finding that European jurisprudence, which he took on board with such enthusiasm led by the then Lord Chancellor, has redounded to his dismay.

Accordingly, I will urge the Committee in due course to do as I have done in my amendments—Amendments Nos. 169 and 170. This would remove the non-judicial element from the Sentencing Guidelines Council. In particular, in Amendment No. 173, I would add the following to the end of Clause 165:

    "Nothing in subsection (1) shall fetter the judges' overriding discretion in the individual case to set the sentence he thinks is appropriate."

That is the position in a nutshell.

Lord Dholakia: We support much of what the noble Baroness, Lady Anelay, has said, except that we disagree about the membership of the council. Our amendment is designed to probe the Government's intention in relation to widening the representation on the Sentencing Guidelines Council. In the Commons, the Sentencing Guidelines Council was originally to be made up of members of the judiciary. We supported amendments tabled by Graham Allen to include at least one of each of the following people: a police officer, a probation officer, a prison governor, a representative of a victim's organisation, a representative of the business community, a teachers' representative, lay members of the public one of whom should be over the age of 50 and one under 18, a representative of an ex-offender's institution, a local government crime and disorder partnership representative, a legal professional and a social service representative.

The Government accepted the argument that it would be useful to have non-judicial representation on the council and amended the section accordingly, which we support and for which we are grateful. However, we feel that there may be some gaps in the new subsection (4) that leave out the type of experience that the Home Secretary would be looking for in the non-judiciary members. We would like to ensure that someone on the council has experience in the rehabilitation of offenders rather than just their punishment by imprisonment. Also, the remit of the council appears to be to deal with sentences of all types for all people, but there is no representative present who has dealt with young people in the criminal justice system, who we believe should be dealt with in a different way to adult offenders.

The Government may say that these points have already been covered in the criteria in subsection (4), but it would be useful to have an explanation on record of the type of people the Government have in mind when appointing the non-judicial members of the council.

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4.45 p.m.

Viscount Bledisloe: I was not intending to take part in this debate, but I was amazed by what I heard emanating from the Conservative Front Bench. Unless I have misunderstood, the whole thing is absolutely extraordinary. I had thought that the thesis on which the Conservative Front Bench and its followers who are conducting this Bill was that it was all right for Parliament to fix maximum sentences, but the rest must be left to the judiciary. However, we now find the Conservative Front Bench proposing that all guidance on normal sentences should go before a committee of Parliament and, at the end of the day, Parliament should have the overriding power to fix what those norms should be. If Parliament is to fix maxima and norms, why is it so extraordinary for Parliament not to be allowed to fix minima? I hate the idea of Parliament being able to fix minima, so I am therefore disgusted at the idea of Parliament having the final say in fixing the guidelines. It seems that those opposite are standing on their heads.

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