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Lord Thomas of Gresford: My Lords, the noble Baroness has stressed over and over again, both in Committee and a short time ago, that she seeks clarity and transparency. If so, she should be able to answer my question with a "Yes" or a "No". Is there anything in the schedule which fetters a judge's own discretion in an individual case to set the tariff he thinks is appropriate?
Lord Carlisle of Bucklow: My Lords, if the noble Baroness says that in her view there is a discretion, what is wrong in writing that fact on the face of the Bill? We had the same argument at an earlier stage. The danger is that whatever she may say about them being starting points, the press, for one, will look on them as minimum sentences and comment on the sentences passed in that way. I hope that the noble Baroness will agree on this occasion with what the noble Lord and learned Lord, Lord Ackner, is saying.
Lord Clinton-Davis: My Lords, clarity is all important in my view. I gave the Government the benefit of the doubt when I voted on the last amendment. On this occasion, I do not know why my noble friend cannot accept the amendment moved by the noble and learned Lord, Lord Ackner. It puts the matter beyond any peradventure. Personally, I should have thought that that was highly desirable.
Baroness Kennedy of The Shaws: My Lords, judicial discretion is at the heart of good sentencing. I have recently returned from the United States. There the Attorney-General is seeking to inhibit judicial discretion. A similar debate is taking place. The senior judiciary of the Supreme Court of the United States is of one voice in its concern about this undermining of justice. So I hope that we shall hear clearly—and
without any doubt—the Minister say in answering this amendment that judicial discretion is not being interfered with and that at the end of the day that is what should guide judges when sentencing.
Lord Donaldson of Lymington: My Lords, in the case of Pepper v Hart the Law Lords decided—wrongly I think, but that is beside the point—that in resolving any ambiguity or doubts about the meaning of a statute one could have regard to what the Minister had said. The Minister here has said that paragraphs 7 and 8 produce complete discretion. Are we now to have a position of someone outside saying, "Well, we know she said that there was complete discretion, but are we right in remembering that she would not accept an amendment which said exactly the same thing?"? Where will that leave us all?
Lord Morris of Aberavon: My Lords, I have listened very carefully to the arguments on the previous amendment. I heard the views of my noble friend Lord Clinton-Davis. I also gave the Government the benefit of the doubt. I have not so far intervened in the debate, but it seemed to me that the Minister made a most persuasive case to underline the fact that discretion existed. My experience of the judiciary is much more limited; I was only a mere recorder for a period of 20 years. I endorse fully the remarks we have just heard. It is of vital importance that discretion is spelled out on the face of the Bill if that is what the Minister intended in her remarks on the previous amendment.
5.15 p.m.
Baroness Scotland of Asthal: My Lords, my short answer is that paragraphs 7 and 8 spell out discretion on the face of the Bill. However, that discretion, as with discretion in other cases, is to be exercised within the framework and in accordance with the law. No judge has an unfettered discretion to do whatever he pleases; he must apply the law as set out in statute. The statute here is plain.
The judge must use the starting point as the judicial starting point. He then has to look at the mitigating and aggravating factors. I shall read paragraphs 7 and 8 if it assists for Pepper v Hart and other purposes. Paragraph 7 states:
- "Having chosen a starting point, the court should take into account any aggravating or mitigating factors, to the extent that it has not allowed for them in its choice of starting point".
- "Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order".
Lord Ackner: My Lords, I am very grateful to the noble Baroness for giving way. Is she agreeing that the current position today is what the future will also show? The current position today is that of course a judge does not have an unfettered discretion. Guidelines have been provided by the Court of Appeal. He must have regard to those guidelines. If he imposes a sentence that is, so to speak, repugnant to those guidelines the Court of Appeal, at the suit of the Attorney-General, will then put in force the sentence the judge should have imposed. That is the position today. Is the noble Baroness saying that from a discretionary point of view that is still unaltered?
Baroness Scotland of Asthal: My Lords, it is unaltered, save and except that the guidelines which will bind the judge are contained in the statutory framework which is here in outline. So the framework the court will have to apply is the statutory guidelines contained in Schedule 19. It is not the currently issued guidelines, because of course the whole point of Schedule 19 is to supplement the position because of the change brought about by Anderson. Your Lordships will recall that prior to that case the Secretary of State preserved an ability to alter the tariff imposed. As a result of Anderson that ability for the will of the people, as expressed through their elected Member, has gone. Therefore, it is for Parliament to decide the framework within which that exercise of discretion on behalf of the people of this country by the judiciary on individual cases should be set.
So this is the framework; these are the guidelines. The noble and learned Lord is absolutely right that within the framework, within the statutory guidelines, the judge will still have the duty to exercise his or her discretion in accordance with the needs of the circumstances of the case. Within the guidelines, if judges are minded to depart from the starting points, they will have to state why they have done so. We believe that that will enable all who come to consider the judge's decision better to understand the route that he was taking.
I also tell noble Lords that we hope—I know that this is an aspiration—that that may limit or hamper the ambit of ill-informed, misjudged comment about why the court reached its decision. I invite the noble and learned Lord not to press his amendment.
Lord Ackner: My Lords, the inability or unwillingness of the noble Baroness to accept the terms of my amendment suggests to me that there is an arriere-pensee in relation to the whole of Clauses 7 and 8. In those circumstances, I wish to test the opinion of the House.
5.22 p.m.
On Question, Whether the said amendment (No. 225C) shall be agreed to?
Their Lordships divided: Contents, 69; Not-Contents, 115.
Ackner, L.
Addington, L.
Alderdice, L.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Bledisloe, V.
Bradshaw, L.
Carlisle of Bucklow, L.
Chorley, L.
Clinton-Davis, L.
Cobbold, L.
Colville of Culross, V.
Craig of Radley, L.
Darcy de Knayth, B.
Dholakia, L.
Elles, B.
Falkland, V.
Fearn, L.
Finlay of Llandaff, B.
Geraint, L.
Habgood, L.
Hamwee, B.
Hannay of Chiswick, L.
Harris of Richmond, B.
Howe of Idlicote, B.
Hylton, L.
Kennedy of The Shaws, B.
Livsey of Talgarth, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
Mar, C.
Mar and Kellie, E.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Monson, L.
Moran, L.
Morgan, L.
Morris of Aberavon, L.
Nicholson of Winterbourne, B.
Oakeshott of Seagrove Bay, L.
Palmer, L.
Prys-Davies, L.
Rennard, L.
Roll of Ipsden, L.
Roper, L.
Russell, E.
Saltoun of Abernethy, Ly.
Sandwich, E.
Scott of Needham Market, B.
Sharman, L.
Sharp of Guildford, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Stern, B. [Teller]
Thomas of Gresford, L. [Teller]
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tordoff, L.
Turner of Camden, B.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Warnock, B.
Weatherill, L.
Wedderburn of Charlton, L.
Williams of Crosby, B.
Williamson of Horton, L.
Amos, B. (Lord President)
Ampthill, L.
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Barnett, L.
Bassam of Brighton, L.
Bhatia, L.
Billingham, B.
Blackstone, B.
Blood, B.
Borrie, L.
Bragg, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chandos, V.
Christopher, L.
Clarke of Hampstead, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Forsyth of Drumlean, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grabiner, L.
Graham of Edmonton, L.
Gregson, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hayman, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jay of Paddington, B.
Jones, L.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Lloyd of Berwick, L.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Mishcon, L.
Mitchell, L.
Morris of Manchester, L.
Nicol, B.
Patel of Blackburn, L.
Pendry, L.
Plant of Highfield, L.
Puttnam, L.
Radice, L.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Rogan, L.
Rooker, L.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Smith of Leigh, L.
Stone of Blackheath, L.
Strange, B.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Turnberg, L.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Woolmer of Leeds, L.
Resolved in the negative, and amendment disagreed to accordingly.
5.32 p.m.
[Amendment No. 226 not moved.]
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