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Baroness O'Cathain: The noble and learned Lord seems to think that there is some merit in the approach and to realise the reasoning behind it, but he says that now is not the time. Does he think that things will get worse? When will be the time? Having listened to the noble and learned Lord very carefully, I get the strong impression that he feels there is a lot of merit in the approach. Why can he not adopt it now?

Lord Goldsmith: There is a balance. When the important power to refer unduly lenient sentences to

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the Court of Appeal was introduced, it was thought that very few cases would be referred. The Committee may recall that the power was introduced at the time of the Ealing vicarage rape, which is what caused its creation. Before then, we had no ability to ask the Court of Appeal to review a sentence.

The jurisdiction has grown. Very important cases have been referred. I mentioned dangerous driving, and I have personally argued cases relating to child sex abuse, rape and gun crime. They provide an opportunity to take important issues to the Court of Appeal. But there is always a balance to be struck as regards which offences to include. A general right of appeal on every sentence would result in a considerable burden. I do not say that it is an issue for me, but it would be an issue for the courts system and others who must deal with it.

There has been a significant increase in the maximum sentence, and the Court of Appeal has laid down clear guidance for the lower courts to follow. I do not understand there to be any criticism of that guidance. If it is followed, the result will be appropriately tough sentences for this very serious crime and there will be no need to refer cases to the Court of Appeal as unduly lenient. That is the reason for it. It is intended to strike a balance between cases where there is a prudent need to add at this stage and those where there is not.

Lord Thomas of Gresford: The noble and learned Lord has described well the system whereby advice comes from the prosecutor, through the CPS, who takes professional advice on sentence levels and argues the case before the Court of Appeal. Does the noble and learned Lord the Attorney-General ever go to Parliament to ask Members of Parliament for their views or to the Home Secretary to ask him what he thinks he should do, or is the matter just left to the professionals?

Lord Goldsmith: Why do I think that I have now returned to a previous group of amendments? The category of power that is used is a particular one. In the vast majority of cases with which I am concerned, I am aware from previous cases what the appropriate tariffs are. However, there are occasions on which it is appropriate to examine other considerations. When I ask instructed counsel to argue about the tariffs in relation to dangerous driving, for example, it is appropriate to understand what the statistics are, what are the concerns from government departments relating to the levels of crime and deaths on our roads, and what are the views of the public. Yes, there are parliamentarians who have expressed strong views about those issues as well, which it would be appropriate to take into account when considering how to address the Court of Appeal about the appropriate sentences to be passed.

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Lord Thomas of Gresford: Will the noble and learned Lord tell us whether it is the views of the MPs, the newspapers and the Home Secretary that prevail or his own view—the professional view that he takes, having regard to previous cases and guideline cases in the past?

Lord Goldsmith: I hope that the noble Lord will forgive me, but this is plainly a debate about another amendment. The amendment to which I have been asked to respond is a very proper and important proposal in relation to a particularly serious crime. The Government are being asked to consider whether to add it to the unduly lenient sentence power. It is not right to hijack that important debate by returning to matters that the noble Lord has debated at some length with my noble friend Lady Scotland.

Baroness Anelay of St Johns: I am grateful to the noble and learned Lord the Attorney-General for his careful response. He started by saying that he shares our abhorrence of the conduct of people that results in the sentences we are discussing. I entirely accept that: he has made that clear throughout his distinguished career at the Bar as well. However, he says that, although he has some sympathy with the amendment, the time is not right or that there is no evidence to prove that this power of referral is needed. I am intrigued by that because in one breath the noble and learned Lord says, "The power is not needed. There is no evidence, so it won't happen", and in the next breath says, "Of course, we shouldn't mention this but were the power to be there we might end up with the Court of Appeal being over-burdened because of work". That argument does not work both ways.

Lord Goldsmith: I am obliged to the noble Baroness. I have been taken to task for referring to personal burdens so I am very anxious not to mention the point too much. I will talk about myself instead. I receive a large number of requests to consider references, many of which are not sent to the Court of Appeal at all because I do not think that they are appropriate. They come from prosecutors but also from members of the public. If we expand the category of the offence, all cases will receive applications. Each has to be carefully considered and each has a resource implication attached. Even in cases that are not sent, there is a burden.

Baroness Anelay of St Johns: Some burdens are worth it and child-protection is one. I wish to test the opinion of House.

10.59 p.m.

On Question, Whether the said amendment (No. 212J) shall be agreed to?

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Their Lordships divided: Contents, 24; Not-Contents, 39.

Division No. 4


Addington, L.
Anelay of St Johns, B.
Attlee, E.
Blatch, B.
Bridgeman, V. [Teller]
Byford, B.
Chan, L.
Cope of Berkeley, L. [Teller]
Elliott of Morpeth, L.
Hodgson of Astley Abbotts, L.
Lyell, L.
Mar, C.
Montrose, D.
Northesk, E.
O'Cathain, B.
Onslow, E.
Russell, E.
Selborne, E.
Shutt of Greetland, L.
Skelmersdale, L.
Strathclyde, L.
Thomas of Gresford, L.
Tordoff, L.
Walmsley, B.


Acton, L.
Andrews, B.
Ashton of Upholland, B.
Bassam of Brighton, L.
Berkeley, L.
Billingham, B.
Brookman, L.
Campbell-Savours, L.
Clark of Windermere, L.
Davies of Oldham, L. [Teller]
Desai, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hayman, B.
Hogg of Cumbernauld, L.
Hunt of Chesterton, L.
Hylton, L.
Jones, L.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
Massey of Darwen, B.
Pendry, L.
Pitkeathley, B.
Ramsay of Cartvale, B.
Rooker, L.
Scotland of Asthal, B.
Smith of Leigh, L.
Stone of Blackheath, L.
Thornton, B.
Warner, L.
Whitaker, B.

Resolved in the negative, and amendment disagreed to accordingly.

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Business of the House

11.10 p.m.

The Countess of Mar: The guidance in the Standing Orders states that it is a firm convention that the House should adjourn at 10 o'clock. Given the effects on the Hansard writers, bar staff and other staff working in the House, may I ask the Chief Whip what time it is intended that the House should resume?

Lord Grocott: Your Lordships will know that it was signalled in the business for this week that we would sit late tonight. It is also well known that the advice for the House to rise at 10 o'clock set out in the Companion is not an iron rule for the precise reason that we need to have flexibility. I think that that is understood on all sides.

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Tonight it is intended to move as rapidly as we can to the end of Part 12. I am hopeful that we shall be able to achieve that and I shall resume my place as quickly as possible. However, one must learn to be flexible in this job because one has responsibility without power.

Lord Cope of Berkeley: I fully accept that the rising time of 10 o'clock is a convention and not a firm rule of our Standing Orders. At the same time, however, noble Lords know that that convention has been broken extremely frequently, in particular over recent weeks. We sat until midnight last night and, if we are to achieve the target just suggested by the Captain of the Gentlemen-at-Arms, then we shall sit until at least that time tonight. I think that it is extremely unsatisfactory for both Members and the staff that we should so frequently break the rule.

This particular Bill is enormous, covering two volumes. What is more, it has a large number of government amendments to it. I accept that some of those take on points that were suggested by the Opposition or by outside comment, but some are wholly the result of the Government rewriting their own Bill, having rethought it since it was originally introduced.

So far the Bill has been considered for seven-and-a-half days, but given that it is such a large Bill, it deserves more time than it has been allocated. Furthermore, if, as rumour suggests, it is to be seriously altered even further by the addition of new material at the Report stage, then the time presently allocated to it will not be sufficient.

I have made these points to the Government on other occasions, but it is right to share them with the Committee at this stage of our deliberations and at this time of night.

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