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Lord Carlisle of Bucklow: I accept that the analogy with the Parole Board is not complete. The noble and learned Lord is right: its main task is to assess risk when it comes to release. I still think that there is a point in what the noble Lord, Lord Borrie, said, which is that on the board there was experience and expertise which came wider than merely judicial. I am open-minded as to the two arguments. I tend to think that it is right probably to have some lay members on the sentencing council. I am not saying that it is an exact analogy.

Viscount Colville of Culross: First, a word on the Parole Board. I was not on the Bench at the time that I was chairman of the Parole Board. It simply would not have been practicable to do both at the same time. But I support the noble Lord, Lord Borrie, about police officers. I do not think that we had any serving police officers during the time that I was concerned with the Parole Board, but we certainly had some very distinguished retired ones. The great advantage of the Parole Board and, indeed, perhaps I may say, another organisation that I chaired before that—the Mental Health Act Commission—was that it was multi-disciplinary. The disciplines contributed greatly to each other. I am not against multi-disciplinary organisations of this sort. I would reinforce the possibility that an experienced policeman might be a very valuable member.

That is not what I intended to address. The problem that I see—raised by the noble Baroness, Lady Anelay—in the method of ping-pong between the council and the Select Committee of Parliament is as follows. At present, we have a series of guideline decisions which come from the Court of Appeal. They are set out at the beginning of a passage referring to a particular offence in a large encyclopaedia which gives guidance on sentencing. They, of course, can be revised from time to time, as they are. That role of the Court of Appeal is to be assumed by the council and the panel will advise it.

Where I see difficulty in the noble Baroness's proposition is this: I cannot believe that the council will be able to address guidelines for all the offences which come before the Crown Court on indictment. There are hundreds of them. If one looks at the present encyclopaedia, it becomes immediately apparent that there is a very large area of criminal law on which there are no guidelines at all. It will take quite a long time for this to be put right, if ever. It may be that there are some kinds of offences which are so rare or so recondite that it is not worthwhile the council dealing with them.

If that is to be the case, Parliament will have no input because there will not be any guidelines to comment on. If one wants to have a wider input into the guidelines process, what seems to be much more important is, first, the role set out for the panel, which I think exists already. It can put forward propositions to the council about a particular type of offence or

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range of offences where guidelines are needed and perhaps do not yet exist. Secondly, there is an input from Parliament in that there will be the annual report. That comes later. If the annual report is debated in either House, presumably it is possible for Parliament to say, first, that it does not like the guidelines on rape or whatever, and, secondly, that in view of current offences being committed in a particular field, it is high time that the council panel and the council apply their minds to laying down guidelines for that range of offences.

That is much more flexible and realistic than expecting Parliament to take part on a regular basis, not only as regards the original guidelines, but presumably also as regards the revisions provided for in this part of the Bill. Therefore, Parliament will have its say at the end of each year when the report comes before it. There will be an opportunity for a large range of people to suggest to the council in what areas guidelines need now to be considered and to be laid down. That will be much more satisfactory than a very complicated parliamentary procedure whereby, in the end, Parliament may have the final word, at any rate for the moment. But I cannot believe that it will necessarily persist for ever because there will be further suggestions from other people—from the panel or from the public—that what has finally been established on that occasion is, in fact, wrong and needs to be revised.

So I would suggest to the noble Baroness, Lady Anelay, that what she has put forward is excessively complicated, is unlikely to cover the field and really could be better achieved by other means.

5.15 p.m.

Baroness Scotland of Asthal: I was so fascinated by the debate that I almost forgot to stand. I thank all noble Lords who have participated. This debate has clearly demonstrated the breadth of the issues with which we now have to deal. It is right that the Government themselves started from the position that the composition of the council should be restricted to judicial members only. Noble Lords will know, not least from having had the advantage of reading the Hansard reports of the debates held in another place, just how that debate expanded, thickened and ultimately arrived at the point at which the Government were content to bring forward their own amendment. It took up the thrust of what had been said in relation to this matter by my honourable friend Graham Allen, together with a number of other Members.

It was right for the noble Lord, Lord Dholakia, to outline the genesis of how we have come to arrive at this position. Further, there is a balance to be struck between what has been said by the noble Baroness, Lady Anelay, about the changes she wishes to see and that which has been said by a number of other noble Lords. I see clearly the force of the comments made by the noble Viscount, Lord Bledisloe, supported so eloquently by the noble Lord, Lord Carlile, and my noble friend Lord Borrie. I do not think that it is necessary for me to underline what appeared to be inconsistencies in the arguments put by the noble

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Baroness. However, I add my compliments to the noble Baroness for so robustly putting forward her case, not only on this matter but also on other issues in relation to this and other Bills on which she and I have both travailed.

This group of amendments has two distinct elements. The first seeks to remove non-judicial members from the council and to make consequential amendments, save for one amendment which seeks to increase the range of experience which non-judicial members would bring to the council. The second group seeks to remove the final decision regarding a guideline from the council and to give it to the Lord Chancellor, acting on decisions of a Joint Committee of Parliament.

I have already outlined the origins of these arrangements. However, it is right to point out that the balance remains very much in favour of the judicial members. When looking at these provisions, I am sure that the noble and learned Lord, Lord Ackner, will have recognised that they provide for a judicial majority on the council: the Lord Chief Justice as chairman with seven other judicial members drawn from each tier of the court, as well as five non-judicial members. Together they will cover the whole spectrum of a criminal case from detection of the offender to completion of the sentence. That reflects very much the fact that sentencing does not take place in isolation and is part of the process of dealing effectively with crime—a very important part, but still a part.

It is expected that everyone appointed to the council will be of the highest calibre, highly regarded, independent minded and able to contribute effectively to the production of guidelines of the highest quality that will justifiably command the respect not only of the judiciary, important though quite clearly that is, but also of practitioners, of the wider public and of Parliament.

This is no mean task. The council will draw on the advice of the Sentencing Advisory Panel, which has earned very considerable standing and respect since it was created in 1999. Indeed, a number of noble Lords referred to the quality and nature of that advice. The panel will continue to draw its membership from a wide variety of backgrounds and it has demonstrated that it can undertake the extensive thought and consultation that is necessary.

The seventh report of the Constitution Committee of your Lordships' House drew attention to a number of concerns, without necessarily endorsing them. The committee recorded the concerns of the Lord Chief Justice and two of our most eminent academic lawyers. Stated simply, those concerns highlight the position of guidelines between legislation and individual decisions and the questions that that raises about whether the council should be regarded as a judicial or a quasi-judicial body.

The framework that Parliament seeks to provide is simply the skeleton. It establishes the key principles, defines the offences, prescribes maximum punishments and sets out when certain types of sentence are available.

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Guidelines provide the skin on that skeleton, filling the gaps and protecting the vital organs that give life to the body. But it is the judiciary who are the living organs that make the whole thing work. The noble Viscount, Lord Colville of Culross, was right to highlight the contrast between the different functions and what can be brought to the process by enriching it with the expertise brought to it by others.

I again wish to make it very clear that the new framework strongly depends on the independence, expertise and acuity of our judiciary. Turning again to the framework, contrary to what has been said elsewhere, our judges—be they lay or professional—are being asked to do an even more difficult and stretching job. That is because we hope to give them the tools to enable them to do that which many of them have wanted to do for a long time. Not only will they deal with the single offence that comes before them, they will deal also with the causes of offending.

I know that a number of noble Lords will have participated in that process and will have known the frustration felt when they were not able to do that which they would have liked to do in order to break the cycle of offending behaviour. The framework to be given to the judiciary—whether they caution, caution with conditions or without conditions; whether they fine and make that fine conditional upon other conditions; whether they do or do not order therapy; whether they order an immediate custodial sentence or an intermediate sentence; whether they refer—will now make available all those options.

The Government recognise that the particular expertise in devising guidelines that judges and magistrates have built up over many years is extremely valuable and agree that the judiciary has a crucial part to play in creating the guidelines. That is why we have ensured that the judicial members will be in the majority on the council and why we have provided that the council should be responsible for producing the guidelines rather than Parliament itself.

However, the range of legitimate interest in the level of sentencing and the approach to different offences is much wider. All of society has an interest in sentencing. The criminal law is the state acting on behalf of society as a whole, and the Government's proposal enables the wider interest to be brought in while still leaving the final decision with a body of very high calibre—and with a judicial majority. I want to emphasise that the expanding nature of the role is going to be reflected in the expanding membership of the council.

The council will commission advice from the Sentencing Advisory Panel, which has a wide membership and consults actively and even more widely. After the council has received the advice of the panel, it will also consult. Although this can be as widely as the council wishes, it is primarily for the purpose of taking the views of Parliament and of Ministers. We do not wish to see Parliament or Ministers and the judiciary at loggerheads. That period of consultation will allow for a considered

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contribution from every part of Parliament, but still the final decision will rest with the council which, again, is to have a judicial majority in its membership.

I know that specific objection has been made to the possibility that a civil servant should be a member of the council. That issue was raised by the noble Lord, Lord Carlile, and echoed by the noble and learned Lord, Lord Ackner. The Government expect the route to appointment to the council to be a mixture for both the judicial and the non-judicial members. Some will be by virtue of the office held, and some after a form of open competition.

The importance of doing so is plain. For the non-judicial members, the current thinking is that two of the five members will be appointed by virtue of the office they hold, and three after open competition. The two ex officio members are likely to be the Director of Public Prosecutions, who will bring experience of criminal prosecution, and the Commissioner for Correctional Services, who will bring experience of sentencing policy and the administration of sentences. Both are civil servants. But they will be appointed to an independent body, established not only as a non-departmental public body—with the usual obligation to adhere to Nolan standards—but in circumstances where the grounds on which they can be removed from the council are restricted and appear on the face of the Bill. Making independent decisions is an essential part of the role of the Director of Public Prosecutions.

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