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Lord Clinton-Davis: Is there not a case for specifying in the Bill the civil servants who are not eligible? It has been argued in the debate so far that certain civil servants would not be appropriate for consideration for the panel and the point made by the Minister is also sensible and highly regarded. What worries many people, not only in the House but elsewhere, is that any civil servants will be eligible.

Baroness Scotland of Asthal: I understand the force of what my noble friend says in relation to that issue. We shall certainly look at the matter. However, we have already considered the issue to the extent of whether it would be proper to restrict those appointments to the offices of the Director of Public Prosecutions and the Commissioner for Correctional Services, particularly bearing in mind, as my noble friend will know, that those offices may change over time. I had hoped to give the Committee an indication of the way in which we propose to exercise and appoint in the hope that that would clarify the way we are thinking. I shall certainly take away what my noble friend has said.

Lord Carlisle of Bucklow: It is fair to say that where the Bill refers to "civil servants" one does not immediately think of the Director of Public Prosecutions. Those who have held that role have always been looked upon as independent members of the Bar or solicitors, not as civil servants. If that is what the Government intend, would it not be better to specify that the Director of Public Prosecutions should

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be one of the people on the sentencing council rather than by covering the issue with the words "any civil servant"?

Baroness Scotland of Asthal: I was describing the difficulty. I understand what the noble Lord says. I have already indicated to my noble friend Lord Borrie that it is a matter I shall be happy to take away and think about. However, the reality is that technically he is a civil servant—although the noble and learned Lord is absolutely right to say that none of us has ever thought of the Director of Public Prosecutions as a civil servant. Indeed, the role that the Commissioner for Correctional Services currently plays is similarly looked upon as being very independent. He serves within a separate body and performs a very independent function.

Lord Mayhew of Twysden: Does not the Commissioner for Correctional Services come from a background of a Home Office civil servant, a Home Office official, by way of the Director of the Prison Service? That is quite separate from the career of a typical Director of Public Prosecutions, is it not?

Baroness Scotland of Asthal: It depends on whether noble Lords consider that that is an advantage or a disadvantage. If one has an intimate knowledge of the structure and the running of prisons and so on, that brings with it a certain degree of expertise in how to inform policy on the use to which prisons can and should be put. It thickens the soup. It also brings a degree of independence because it relates not to mainstream Home Office business but to a body which carries out its functions separate and apart even though it comes under the responsibility of the Home Secretary.

I understand the concern about mainstream civil servants. There is always the question of how the individual will balance his obligations to Ministers with his obligations as a member of an independent body. Even if he can, will the wider perception still be that he is somehow the tool of the Home Secretary?

In his response to the Select Committee of the House referred to earlier, Dr Thomas speculated that the driving force behind the proposal to create a sentencing guidelines council is a desire for the Home Secretary to exercise greater control over sentencing. That is very much the thrust of what the noble and learned Lord, Lord Ackner, sought to say about my right honourable friend the Home Secretary. Dr Thomas pointed to the involvement of the Home Secretary in appointing members; the power of the Home Secretary to request the council to formulate a guideline; and the obligation of the council to consult the Home Secretary on a draft guideline.

The first two of those observations simply follow on from the equivalent provisions that already exist in relation to the Sentencing Advisory Panel. The third and most significant is actually designed to reinforce the proper independence of the judiciary. It recognises the responsibility of the Home Secretary for sentencing policy and provides a process for positive and helpful

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dialogue before guidelines are made, but it again leaves the final decision with the council, which will have a judicial majority.

If appointed, the Commissioner for Correctional Services will bring unique experience of what happens within the correctional services, coupled with wide understanding of sentencing policy issues. As a normal part of his daily responsibilities, such a person will advise Ministers with complete integrity. We can expect such a person to act independently and with integrity as a member of an independent council. We are talking of people of the highest calibre, working in an open environment where it is very unlikely that progress will be made unless there is consensus.

The council will be independent; its members will be independent; there will be no infringement of the principle of the separation of powers.

I agree with those who believe that the council will be enhanced by the membership of others who have different skills. We need to remember the context in which we are discussing sentencing. As never before, there is a good deal of public disquiet about the criminal justice system. We know that the recorded levels of confidence in the system and in sentencing is low. Those of us who know a number of judges and magistrates are well aware how able and committed they are and how difficult is the job that they carry out on a day-to-day basis in our courts across the country. However, the perception does not always follow the reality and we need to build a system in which people feel a greater degree of confidence and empathy.

The next group of amendments raises the important issue of who should have the final responsibility for agreeing the content of the sentencing guidance to which a court must have regard when fixing a sentence. This function is currently performed, as the noble and learned Lord, Lord Ackner, said, by the Court of Appeal (Criminal Division). The Bill provides that it will be undertaken by the Sentencing Guidelines Council, which will have a judicial majority. If adopted, the effect of the amendments would be to take the power away from the council and, in effect, give it to Parliament, operating through a Joint Committee of both Houses. I believe that, on balance, the debate today has indicated that that would be outwith the desire of the Committee.

There is no question that Parliament will have every opportunity to contribute where it wishes, bearing in mind that there are well over 2,000 offences that are likely to be susceptible to guidelines in one form or another. I do not anticipate that Parliament will want to give the same level of consideration to each. The noble Viscount, Lord Colville, was right when he said that the Court of Appeal has concentrated on specific matters. There are offences which have never been subject to guidelines, and there may in the future be offences which will follow that pattern. However, as the noble Viscount also rightly says, there is a plethora of offences which would benefit from guidelines.

The council will have the opportunity to look much more broadly than the Court of Appeal Criminal Division has hitherto. One must not forget that

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members of the Court of Appeal, extraordinary as they all may be, are still mortal; they do, like Ministers, occasionally need sleep, though not a great deal; and there is a lot of work for them to undertake.

5.30 p.m.

Viscount Colville of Culross: May I interpose for one moment? The other difficulty is that the Court of Appeal can issue guidelines only if it has a group of suitable cases on appeal before it. If there are no cases on a particular subject, it never gets the opportunity to produce guidelines.

Baroness Scotland of Asthal: The noble Viscount is absolutely right. The council will be able to undertake a proper review of those issues which need and would benefit from guidelines but have hitherto not been subject to guidelines.

Viscount Bledisloe: When the noble Baroness says that members of the Court of Appeal need sleep, is she suggesting that that is when they are sitting or at other times?

Baroness Scotland of Asthal: I think they would benefit from the odd respite at night. I empathise with them because I, too, and, I think, the noble Baroness, deeply desire such an opportunity.

Lord Ackner: May I intervene once more? Reference has been made to the difficulty the Court of Appeal may be in because of the absence of cases that can be brought before it in order to enunciate guidelines. That does not exist any longer because the panel is there to initiate any guidelines that it thinks ought to be considered. It then consults widely outside and produces the material to the Court of Appeal.

Baroness Scotland of Asthal: The noble and learned Lord, Lord Ackner, is right. He also knows that the purpose of the council is to take the role that is currently being adopted by the Court of Appeal, which the Lord Chief Justice accepted as a right and proper thing to do. The issue about which we are not in agreement is whether the composition of the council should be more broadly based than that of the judicial committee. If I may respectfully say so, we are not necessarily disagreeing that there has to be and should be a council. The import of these amendments is the composition of that council and whether non-judicial members should be a part of it.

The breadth of the people involved suggested by the noble Lord, Lord Dholakia, would make the membership far too large to be effective. Under these proposals, the council will have a chairman and 12 members. This seems a very effective size, considering the task being undertaken.

There is a further amendment that, while accepting the number of non-judicial members, seeks to increase the range of experience that those five members bring so that they also bring experience of rehabilitation of offenders and of young offenders. These are two key areas but they are already included within the fifth area

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of experience of sentencing policy and the administration of sentences. At the moment, we have five areas of experience and five non-judicial members. It would be dangerous to expand those areas too much and not wise to include these particular categories, which are narrower than those presently provided.

The council will have an obligation to take into account a wide range of issues and will have to have access to a great deal of information, but it is not necessary to specify that these two areas are included. We of course have the benefit of the advisory panel which has a very broad spectrum of expertise into which the council will be able to dip. Indeed, it can make specific requests and inquiries of the panel to provide that information if it finds that that is outside its experience or knowledge. It is an opportunity to pull those two bodies together.

I know that some have said that having the panel means there does not need to be any lay membership on the council. Similarly, it is argued that having a lay membership on the council means you can get rid of the panel. We believe that you benefit from both. The panel can concentrate and hone in on the wider research and other issues that will better inform the council, which will then, because its membership is broader, be able to evaluate that evidence and the information that it is given and come to an appropriate consensual position on how to deal with matters.

The points raised by the noble Lord, Lord Carlisle, and the noble Viscount, Lord Colville, have, if I may respectfully say so, been very well made. I of course understand the concern and fear expressed by the noble and learned Lord, Lord Ackner. I also understand why he should suggest that in some way these provisions have sprung out of an irritation created by my right honourable friend the Home Secretary. However, that is just not right. The starting point, as the noble and learned Lord knows, was a council with no lay element. That was our preferred option at the inception. But what has happened, as the Bill has gone through the other place and has now come to this place, is that the Government have listened to the arguments that have been very forcefully made, accepted that they are sound and sought to incorporate that thinking into the way in which we framed the new provisions.

We are trying to create a system which is even more fit for purpose than the one we have. It is always tempting to say that we are already in the best of all possible worlds and no further improvement is needed or necessary. We know that that is not true and are attempting to craft something that will enhance the opportunity we all have to get this system right, so we have a system of which we can all be proud.

I do not resile for a moment from saying that the system we are seeking to pursue in the Bill will inure to the benefit of the citizens, be they victims, witnesses or defendants. We want fairness, we want clarity and we want a system which is capable of being applied with parity right across the piece.

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With those comments, I invite the noble Baroness not to press any of her amendments and to do just what she said—to probe and, I hope, not to return.

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