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Baroness Farrington of Ribbleton: My Lords, perhaps the noble and learned Lord, Lord Ackner, will forgive me. I am conscious of the noble Countess,
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Lady Mar, on the Woolsack and that noble Lords are advised that there is no strict control of timing. But I am also aware that if noble Lords, in general—I do not point the finger at anyone specific—speak for longer than nine minutes, the House will rise considerably beyond 11 pm.

5.39 pm

Lord Ackner: My Lords, I propose to address noble Lords on sentencing, with particular regard to a speech made by the Lord Chief Justice, the noble and learned Lord, Lord Woolf, on 12 May, the occasion being the Sir Leon Radzinowicz lecture at the Cambridge Institute of Criminology. Its contents have received very little publicity. I wish to support the Lord Chief Justice's recommendation that the Government should declare a closed season on sentencing legislation because the system has reached the limit of the amount of change that it can, for the time being, absorb.

I owe it to the House to declare my limited credentials in taking on that task. Shortly after I became a Lord of Appeal in Ordinary, I was persuaded by my great friend, the noble and learned Lord, Lord Brightman, to engage myself in parliamentary activity, for the following reason: he told me that attacks were frequently made in the House on the judiciary for imposing excessively long sentences. How times have changed. The attacks were usually made by the late Earl Longford and an old sparring partner of mine, Lord Hutchinson.

My noble and learned friend Lord Brightman said that the trouble was that there was no Law Lord—either sitting or retired—in the Chamber to repel those attacks and to explain why the allegations could not be sustained. My noble and learned friend Lord Brightman asked me, because I was the "judicial shop steward emeritus" with experience of having presided over a number of sentencing conferences for the benefit of circuit judges, recorders and newly appointed High Court judges prior to the setting up of the Judicial Studies Board, as well as informal discussions with students from the Cambridge Institute of Criminology.

I reluctantly accepted being the judicial Aunt Sally. In those balmy days, the prison population stood at about 40,000, which was roughly half the current number. Parliament had laid down the framework in relation to any given crime by setting out the maximum sentence that could be imposed, leaving it to the judiciary, consistent with their oaths, to do justice by sentencing the prisoner on the facts of the case, giving due weight to mitigation as well as aggravating factors, subject always to the right of appeal if given leave.

The Court of Appeal, in order to promote consistency of sentence, from time to time laid down guidelines for a particular type of crime, having collected a number of appeals featuring those crimes. It was well recorded in Government White Papers between 1988 and 1991 that,

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Imprisonment was an expensive way of making bad people worse. For most crimes, not being violent, punishment in the community was likely to be better for the victim, the public and the offender.

Nearly 15 years ago, in the White Paper issued by the Government entitled Crime, Justice and Protecting the Public, it was stated:

A year later in the White Paper entitled Custody, Care and Justice, which was the Government's response to the Woolf report following the Strangeways riot, it was stated:

I understand that the annual cost of keeping a prisoner in prison is currently £37,500.

Such was the situation prior to Mr Howard becoming Home Secretary and pronouncing his populist observation—"Let's be clear: prison works". All that means is—so long as the system successfully prevents the prisoner from escaping during his period of imprisonment—that the prisoner is disabled for that limited period from committing any further offences. All you have done is "warehouse" the particular offender. Following that unenlightened speech, the prison population has consistently grown.

What has now and for some years shocked the public is the horrifying reoffending rate and its consequences. The cost of reoffending by ex-prisoners is approximately £1 billion per year and approximately 58 per cent of prisoners are reconvicted within two years of being released. The present overcrowding of prisons makes it impossible to train prisoners so that they can obtain honest employment on discharge. It is now well accepted by the Government, the Opposition Benches and I believe the majority if not the entirety of Cross-Benchers that radical steps have to be taken, first, to reduce offending and, secondly, to persuade the public that community sentences are satisfactory options, and can and do deflect the further commission of offences.

In the past few years, following the reports of Lord Justice Auld and Mr Halliday, the Criminal Justice Act 2003 has been enacted, although a number of its important provisions have only recently been brought into effect. Section 170 of the Act sets out the purposes of sentencing as:

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I am surprised that "the protection of the public" is so low down that list. I would have promoted it to second place, but that is a small point.

How does one break the vicious circle of offending, then punishment, then release after serving the sentence, and then reconviction? In his lecture, my noble and learned friend Lord Woolf gives grounds for a cautious sense of optimism, which include, first, that there is greater realisation than there has been hitherto that prison sentences are not constructive and should be used only as the sentence of last resort. Secondly, the approach to juvenile offenders has been transformed by the establishment of youth justice boards. The success of that approach has resulted in applying similar provisions to the 18 to 20 year-old offenders. Thirdly, there has been a growing appreciation of the importance of addressing the specific needs of women offenders, having regard in particular to the sharp rise in conviction for drug-related offences.

Fourthly, those with mental health problems are to be dealt with in a more appropriate setting than prison. Fifthly, piloting is taking place on restorative justice projects. Sixthly, sentencing technology using electronic tagging has contributed to reducing the prison population. Seventhly, there is now clear consultation between the Home Office and the judiciary on legislative proposals and changes in government policy as to criminal justice. A separate committee under Lord Justice Rose, the Vice-President of the Court of Appeal, assists in ensuring that the legislation will work in practice. That is not an easy job, but it is one for which he has much ability.

Time does not permit me to deal in detail with the resource implications, which are considerable relative to the actual additional work placed on parole boards and probation officers. The closed season proposal will show whether the good intentions can be put into practice. Nor have I dealt with the Sentencing Guidelines Council, which will provide authoritative guidelines to the courts on levels of sentencing.

I should like to end this contribution by saying how delighted I am at the appointment of my noble friend Lord Ramsbotham. If only he had been appointed a few weeks earlier, he might have produced the authoritative contribution which I have sought, albeit inadequately, to make.

5.51 pm

Lord Maclennan of Rogart: My Lords, I shall not follow the noble and learned Lord, Lord Ackner, into the important subjects he has raised. I hope that there will be other opportunities to do so. Rather I want to reflect on the wider purposes of constitutional reform at this point in our history since not only is it one of the subjects for our debate, but also a number of measures were alluded to in the gracious Speech which purport to touch on these issues. What I have to say about those measures is that I find in them no theme. They do not address what I perceive to be the principal
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requirement at this time; that is, the strengthening of the accountability of the central government of our country to Parliament.

It has long been seen that the parliamentary aspects of our democracy were the imitable aspects. Of course it has never been a perfect system, but its imperfections have become clearer over the past decade than perhaps at any time over the past 150 years. One to which attention has already been drawn is the whole area of the conduct of foreign and defence policy which, under prerogative powers, is largely exempt from the inevitable scrutiny of the two Houses of Parliament. In his remarks, with which I agree at least in part, the noble Lord, Lord Owen, was right to draw attention to the possibility that certain important decisions on defence could be taken under the exercise of prerogative powers and ought properly to be made accountable to Parliament. However, I do not believe that we should approach the proposition in a discrete way. It is time to subject the prerogative powers, particularly in respect of the conduct of foreign and security policy, to parliamentary control. It is quite strange that there is no automatic oversight of these matters by this House. No committee can look at the effective operation of treaties.

More widely, in the previous Parliament we saw what is regarded as the apex of the parliamentary system, Cabinet government, being brought into increasing disrepute. It has been testified time and again by external inquiries which were even set up by the Prime Minister. For all that it focused its attention primarily on the BBC in its conclusions, the Hutton inquiry revealed an astonishing lack of coherence on the most important issues of the conduct of war and peace. Six powerful paragraphs at the end of the report of the Butler inquiry spoke of how the system for the control of handling intelligence had been changed by deliberation to take it away from its direction to informing the Cabinet. Moreover, by the rolling together of the jobs of adviser on European, foreign and security matters with the role of the Prime Minister's adviser, the Cabinet had effectively been bypassed. No legislation that I could propose would bind Prime Ministers to conform with the best examples of their predecessors, but there needs to be awareness, open debate and criticism when these standards are not maintained.

After the First World War, Lord Haldane produced his important report on the machinery of government. Reflecting on the lessons of war, in 1918 he advocated certain procedural rules which we would do well to record and remember today. The main function of a Cabinet was described as being the final determination of policy to be submitted to Parliament, the supreme control of the national executive in accordance with policy prescribed by Parliament and the continuous co-ordination and determination of the activities of the several departments of state. He went on to say that in particular the Cabinet should be supplied in the most convenient form with all the information and material necessary to enable it to arrive at expeditious decisions.
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I do not think it is an accident that the prime disaffection reflected in the outcome of the recent general election was not so much with the Labour Government as a whole but with the architect of the departures from these practices: the Prime Minister. His personal standing has been substantially eroded by his being perceived to be acting in ways which are, frankly, not in conformity with the democratic parliamentary basis of our constitution. It is not too late for steps to be taken to reinstate regard for these rules.

Other matters do fall to Parliament to consider, principal among which is the role of the Civil Service, the enabler of the executive arm of government. It is regrettable that nothing in the gracious Speech indicated a Bill to put the Civil Service on a proper, new statutory basis. I avoid the use of the word "modernisation", for the reality is that modernisation means different things to different people.

In regard to the Government's efforts in this area, Tony Wright MP, who has been a distinguished and hard-working chairman of the Public Administration Select Committee, pointed out that modernisation can mean more efficiency in the way that Parliament processes executive business or more effectiveness in the way in which it holds the executive to account. He said that while a little progress has been made with the former kind of modernisation, the latter kind has so far been an absent guest at the political reform feast.

It needs to be made clearer who is responsible for what executive activity to enable Parliament, through its Select Committee system, to hold Ministers to account when they are responsible and civil servants when they have been given responsibility. We have seen how Ministers can use the present system when it suits them. The present leader of the Opposition in another place was able to wrangle with the then head of the Prison Service about who was responsible for mass escapes and thus duck responsibility.

If Parliament is to regulate and intervene effectively the reform of the Civil Service—to modernise it or to get away from the role traditionally described by the noble Lord, Lord Butler, as long ago as 1985—has to be brought into effect. I do not believe that this should be done by a government who are simply relying on a one-line commitment in a manifesto; these matters ought to unite all parties. Before constitutional reform is set in concrete and before the Government feel that their standing is affected by their commitments, cross-party discussion needs to be embarked upon.

I do not take kindly to suggestions from members of the Government—who engaged in such discussions at an earlier stage of their incarnation—that they can now, because of a few lines in a manifesto which described nothing of the details of the legislation, command the support of this place. The proper legislative procedures can and should be gone through. The Parliament Acts exist and until they are amended it is right that we should exercise our powers to seek to improve the governance of our country.
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6.3 pm

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