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Baroness Anelay of St Johns: It may help the Committee if I briefly explain this point again. Our intent is to provide a reflection of what I said on Second Reading, which was endorsed, as the noble Viscount might recall, by the Lord Chief Justice. We have tried to reflect that and tried to explain that we thought that there was a role for Parliament. We seek to find what that role is. I have made it clear that I will not vote today on any of the amendments in this group, even though I have put my name to some that are also in the name of the noble and learned Lord, Lord Ackner. I have no intention of voting on those today, but I genuinely seek the opinion of the Committee. I am delighted that the noble and learned Lord is, as ever, robust in his views.

Lord Ackner: Does the noble Baroness recall, as I do, that the noble and learned Lord the Lord Chief Justice, in the memorandum deposited in the Library, made the point that, until now, there had never been any suggestion that the judge's decision on the right sentence should be referred to Parliament for its approval? He added that doing so would be out of harmony with the constitutional position, under which the judge fixes the sentence.

Baroness Anelay of St Johns: I ought to answer that question before we go any further. My amendments would not represent a diktat on what a sentence should be; they would leave it to the discretion of the judge in each case to make his decision on the facts of the case. I realise that, in saying that, I sound horribly like the Minister, who seeks to justify the Government's position on the same basis—when push comes to shove in court, the judge will still have the opportunity to make the decision in those cases.

I seek simply to find a way to resolve what appears to be an impasse. The firmness of that impasse is rapidly becoming clear.

Lord Borrie: Before the noble Viscount, Lord Bledisloe, got up, I was going to say that there were two matters on which I agreed with the noble and

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learned Lord, Lord Ackner. One was the point, which the noble Viscount, Lord Bledisloe, enunciated—I agree with the point—that for Parliament to get involved in approving or amending the statements of the Sentencing Guidelines Council would be a step too far. It is inappropriate for Parliament—the legislature—to go further than to do the kind of thing that appears in Clause 135; namely, setting out the purposes of punishment. To go further than that would be to involve the legislature in something that is not its business. The noble Viscount rightly drew attention to that because of the difficulty of understanding the points made by the noble Baroness.

The other point that the noble and learned Lord, Lord Ackner, made with which I agree entirely is that the ultimate discretion to determine what sentence should be imposed in the individual case must be that of the judge in that case. There is no point in my anticipating what my noble friend the Minister will say, but, as I understood the debate the other day, she said that that existed fundamentally and would continue to do so when the Bill was passed.

I want principally to deal with the narrower point of the membership of the council. Should there be members of the council who are not judicial? There, I am afraid, I disagree with the noble and learned Lord, Lord Ackner, and, therefore—with the utmost respect and, I hope, restraint—with the views of the noble and learned Lord the Lord Chief Justice. On that point, I was encouraged by the noble Baroness, Lady Anelay of St Johns, who said something to the effect, I think, that membership of the council must have the confidence of the judiciary and of the public. The public includes not just the general community of everybody but members of the community who are involved with crime, in particular, such as the police, probation officers and others concerned with sentencing, particularly if the sentences involve imprisonment. The principles of sentencing involve members of the public.

When the Committee discussed generally the principles of sentencing a couple of days ago, I suggested that, properly, there was some similarity or some analogy in composition between the Parole Board, of which I was a member many years ago, and the new council. The Parole Board has always, as I understand it, been composed of judges, representatives of the police, the probation service, criminologists and psychiatrists. Although we are in Committee, I am not concerned here with all the detail, but that list is not dissimilar to what is proposed in Clause 160.

We should bear it in mind that the Parole Board is a decision-making body and that the Sentencing Guidelines Council is an advisory one. For the past 30 years or more, it has been thought appropriate to include non-judges in decisions about the sentences that are actually served by prisoners, after the Parole Board has examined their cases for early release and so on. That is significant. My experience, old though it is, is that the composition of the Parole Board suggests that diverse skills can be useful in the sentencing process.

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Our chairman, who was a Member of the House, was Lord Hunt of Llanfair Waterdine, more familiarly known as Lord Hunt of Everest. He was not a judge; he was a military man who became famous, just about 50 years ago, when he got to the top of Mount Everest. The Committee will appreciate that deference to judges was, perhaps, greater 30 years ago than it is now. Lord Hunt was concerned that, with the mixed membership of the Parole Board, the judges should not snaffle the chairmanship of every panel. They have a tendency to want to be the chairman, but Lord Hunt said, "No. We should take it in turns. One day, it might be the psychiatrist; another day, the policeman; and on another occasion, the High Court or circuit judge". That was done because it was appreciated that, otherwise, the judges might be a little too strong-willed and the rest of us too deferential to them.

The essential point that I want to make is that judges have tremendous experience. They are to have the majority on the Sentencing Guidelines Council. It is proposed that a minority should be non-judges, drawn from the various groups in society that have knowledge of crime and punishment. That seems appropriate.

Lord Carlisle of Bucklow: I bow to no one in my admiration of my noble friend Lady Anelay of St Johns for the way in which she has conducted the business on the Bill from the Opposition Front Bench. Not only has there been this Bill but, in the past year, there have been various other Home Office matters, one after the other, and one must be full of admiration for the way in which she has conducted the debates. I am afraid, however, that I must say that, on the point raised by the noble Viscount, Lord Bledisloe, I find myself on his side. The suggestion that, in the end, Parliament should, in some way, influence the sentence that is passed or the sentencing guidelines is one that the Opposition Front Bench might well decide to leave aside.

In the debate, we are concentrating on the composition of the sentencing council. I confess to be being open-minded. I appreciate that the noble and learned Lord the Lord Chief Justice has expressed the view that it should include only members of the judiciary. Obviously, that view must be taken into account. I am concerned at the fact that policing is identified as one of the areas from which the lay members could come.

I listened with interest to the noble Lord, Lord Borrie. He was a distinguished member of the Parole Board. I was never on the board, but I conducted a review of its workings. It is right to say that the Parole Board has been chaired by members of the judiciary and non-members of the judiciary. The noble Viscount, Lord Colville of Culross, was, I think, the exception, as a member of the judiciary who chaired the board. The board has always drawn membership from different aspects of public life and has drawn its strength, in some ways, from the fact that, as the noble Lord, Lord Borrie, said, the chair was

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always rotated and the views of others as well as the judiciary were listened to on the subject of when a man should be released.

I am sure that I am wrong, but there is one matter that I question. I know that the noble Viscount, Lord Colville, will put me right if I am wrong. I am not sure that it is right to say that the Parole Board always had representation from the police. It certainly had the other bodies mentioned. I cannot remember whether the police were on it or not. I thought not, and I query whether the police are the right people to be on the sentencing council. There are arguments both ways. A strong element of the Parole Board was that it was not totally composed of the judiciary. In fact, it was a minority judicial and a majority from other bodies.

I support the noble and learned Lord, Lord Ackner, on Amendments Nos. 171 and 173 particularly, which are being discussed in this group. Amendment No. 171 leaves out a subsection which specifically states that civil servants should be able to be members of the sentencing council. If there is anyone who should not be a member of the sentencing council, it is the civil servant. On looking at the areas of expertise required, it is really stating that one of them may at any time be a civil servant from the Home Office. With great respect to civil servants in the Home Office, they are not the right people to be on the sentencing council, which is to be set up by the Home Secretary. On that point I agree strongly with the noble and learned Lord, Lord Ackner.

Amendment No. 173 comes back to the debate on Clause 135 about the use of the word "must". Clearly, guidelines should carry great weight with the sentencing authority. However, the Bill states that courts must have regard to the guidelines. So long as those words indicate the necessity to take account of the guidelines or to have regard for the guidelines, I think that the noble and learned Lord, Lord Ackner, is right. It should be made clear that that does not overrule the overall general discretion of the judge to make the appropriate sentence according to all the facts of the case. It is the same argument as we had on Clause 135. It will not benefit anything by repetition. I probably spoke too long on it on Monday anyway. But the noble and learned Lord, Lord Ackner, is right. If every court "must have regard", it must be made clear that "must have regard" does not mean that the guideline is bound to be imposed on every case. There must still be an overriding discretion with the judge who hears all the facts.

5 p.m.

Lord Ackner: Before the noble Lord sits down, would he agree that the analogy of the Parole Board has very much a limited value? As I recall, the Parole Board's function was to evaluate risk. It was concerned about whether a person should obtain his

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liberty having served the necessary part of the sentence. Is that not a different matter from deciding what is the appropriate just punishment?

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