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The ultimate irony is that, while the prison population has risen by 30 per cent during the past 10 years to an unprecedented 83,000, the number of people found guilty by the courts has remained almost the same, having risen by about 2 per cent. What has changed is that we are sending more people to prison for lesser offences and for longer—we are tougher, at an enormous human, social and financial cost.

The aspirations for the Bill, as expressed in the Ministry of Justice Explanatory Notes, are for,

expressed with,

Until our system of justice is far more coherent and consistent, and one which the community knows about and understands—for that is the basis of confidence and trust, is it not?—we will continue to suffer from a crisis of confidence and trust in our criminal justice system.

At this stage, I must add my wholehearted endorsement and relief at the sensible decision by the Lord Chancellor to remove Clauses 11 and 12, where provision was made for secret inquests, which has been spoken to so eloquently by many noble Lords, including my noble colleagues. The confidence that we all need—not to speak of the needs of the bereaved families—will now not be compromised, as it would have been.

I concentrate my few remarks on what is a potentially significant part of the Bill in the opportunities that it offers: that on sentencing and the proposed Sentencing Council. Given the unprecedented explosion in the numbers of the prison population during the past 10 years against a background of almost unchanged numbers of people being found guilty by the courts, it offers the possibility of change. The way in which the Sentencing Advisory Panel and Sentencing Guidelines Council operated turned out to be a rather slow and

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cumbersome process. We must have a framework in which stability and consistency in sentencing can be achieved, without overly constraining the discretion of sentencers, while also commanding the understanding and confidence of the public. The Bill’s proposals offer a start to achieving this. I emphasise that it is a start because there is a lot of work to be done.

We are very glad that the sentencing grid, as proposed by the noble Lord, Lord Carter, has been rejected and that the current proposal in the Bill broadly reflects, instead, the conclusions of the working group under Lord Justice Gage, who had looked closely at the Carter proposals. The wording of the Bill is that the courts must have regard to the guidelines, but there is also the important caveat,

I am well aware that this is causing real concern for sentencers and that it will require careful scrutiny. However, it is a serious attempt to balance the need for consistency with the need for judicial discretion. It will be important to ensure that it never becomes an exercise in predicting prison numbers, or that its emphasis is perceived to be on the punitive, as opposed to the restorative and rehabilitative, element of sentencing.

The Bill also includes a duty for the council to monitor both the operation and effect of its guidelines. That could and should show how effective the council is in promoting consistency and the extent to which its guidelines are being followed, which must then inform its practices. The proposed duties on the council to carry out impact assessments on the resource implications of court decisions on the prison, probation and youth justice services on one hand, and the potential impact of policy and legislative proposals on the other, are very important and could have far-reaching implications. That could highlight the crying need for better resourcing for probation and other services if sentencers are to see their decisions realised, as they should expect, instead of the lack of available drug or alcohol treatment services, a domestic violence course or a mental health treatment programme, which is routinely the case today.

The publication of the potential impact of policy and legislative proposals will mean that Parliament is in a far better position to make informed decisions before it gives its assent to any further legislative changes. This could, for example, have been the case with the indeterminate sentence for public protection, about which my noble friend Lord Goodhart spoke at impressive length. Indeterminate sentencing has resulted in a surge of over 5,000 prisoners in the population, with the majority left in a penal black hole, unable to earn their release for lack of the necessary courses to do so. This is an absolute lack of justice. The council’s role in informing and educating the sentencing process could serve the interests of better decisions and better justice. It is, indeed, devoutly to be wished.

However, there are at least two features that are crucially lacking from this part of the Bill, which seriously undermines the potential for positive change. The first, as was referred to by my noble friend Lord Dholakia, is an overarching and explicit commitment to the prevention of reoffending in the Bill. It is, after all, a key element in the purposes of sentencing and

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should inform all our thinking, planning and practice. All the evidence shows that the Government’s policy of community sentencing really cuts crime at far lower cost to the taxpayer and with greater benefits to the victims, the community and, of course, the offenders. A key element in its success is that sentencers are regularly given the opportunity to visit and see what is currently available to them at any one time in their particular areas when they are considering their disposals. It will make all the difference to those kinds of decisions. I have seen the effect of this, having chaired the Rethinking Crime and Punishment initiative over the past seven years. We ran demonstration projects in various parts of the country and found that the initiative had an effect on many of the sentencers that was almost an epiphany.

The other gap in the Bill is a duty on the Sentencing Guidelines Council to engage with local communities and to inform, educate and consult them about its role and what is happening. This should be a core function of the council: one that underpins its work. The Bill talks about the council “promoting awareness”, which is fine but inadequate. A specific public information and consultative role must be included. The public need a trusted authoritative source to counter misinformation about sentencing and to explain how and why the system works. A role of this kind has the potential to put right and close the gap in public confidence and trust. This is at the core of the aims of the Bill. It gives rise to questions such as what the composition of the council should be, but its importance cannot be emphasised enough.

I have already spoken for 11 minutes and know that we are probably all desperate to get home. I am now winding up my remarks and I hope noble Lords will agree that it is beyond anyone to do justice to the range and depth of the contributions this evening. This has been an extraordinarily important and wide-ranging debate and I have hopes that the good parts of the Bill will be enhanced and developed by the very long processes of Committee and beyond.

We have heard a great deal about the enormous amount of legislative work that we do in this House—the noble and learned Lord, Lord Lloyd, talked forcefully about the amount of legislation that we have already had—but at the same time there have been calls around the House for separate Bills on a whole range of issues that are already in this Bill. They are unfortunately mutually exclusive. Suicide, genocide and murder are three themes that have come up again and again in incredibly important debates. I hope that these and other important elements of the Bill will now be put in their place and given the sort of scrutiny that will do them all justice. On that note, I thank everyone on behalf of my part of the House for their extraordinarily interesting contributions.

9.08 pm

Lord Henley: My Lords, the noble Baroness, Lady Linklater, says that it will be rather difficult for anyone to wind up a debate such as this. I look forward to the noble Lord, Lord Bach, trying to do so in the time available after I have sat down.

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I start by being very kind to the noble Lord and congratulating him first on introducing this Bill—or, rather, this whole series of Bills—to the House, and then sitting through the entire debate. I remind the House that he is the only person in this House who has sat through every single speech—good luck to him—and who will have to wind it up at the end. Those are the last congratulations that I will offer him.

I will not speak much to the merits of the Bill, because my noble friend Lord Kingsland set out our views—to the extent that he could on such a wide-ranging Bill—at the beginning of the debate. I shall concentrate on the process by which the Bill has been brought to us, because that has been of considerable concern to a large number of Peers who have spoken. This Bill is like the Criminal Justice and Immigration Bill—that farce of a Bill that we had last year and that was first introduced in another place. Half its clauses were added to it on Report in another place, and then half of those clauses were removed in Committee in this place. We now have a Bill of equal size this year before this House—a Bill which, as many noble Lords have said, could be quite a number of different Bills. There are nine parts, 166 sections and 21 schedules. I think it was the former Lord Chancellor, the noble and learned Lord, Lord Falconer, who implied that Lord Chancellors were judged by their weight, and by that I mean the weight of legislation they put through—

Lord Falconer of Thoroton: I did not imply it, my Lords, I said it.

Lord Henley: My Lords, the noble and learned Lord and the noble Lord, Lord Bach, would find it considerably better if they passed fewer Bills, took more time over them and tried to get them right.

I will offer some advice to the noble Lord. Many years ago, in the long distant past when I was a Minister in the Department for Social Security, we used to push through an all-singing and dancing social security Bill every year. Politically it was very difficult—legislatively it was equally bad. It did not allow Parliament time to scrutinise these Bills adequately and after a while we found it a great advantage to break these things up and have a number of discrete Bills. That allowed both Houses more time to spend on the process and also allowed them to get it right. It was good for Parliament, it was good for legislation and it was good for the statute book. No one can say that something like this is good for the statute book, particularly when it is the fourth, fifth or sixth—I cannot remember which—criminal justice Bill we have seen in the past four, five or six years.

The first question I would like to put to the Minister is how many Bills have there been. Just to get things in perspective, will he remind us how many parts of all of those Bills have never even been brought into effect? Here we are labouring away on legislation and half of these Bills, or large hunks of them, are not brought into effect. I would be grateful if the Minister would take advice on that and offer us some help.

If the Minister wants a sign of the size of this Bill and the number of subjects it covers, it was brought home to us very firmly by the noble Lord, Lord

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Thomas of Gresford; at about the 16 or 17 minutes into his speech he reminded the House that he had not even got beyond Part 2. There were Parts 3 to 9 still to go. He quite rightly left many of those to his noble friends.

I will stick to the process of the Bill and would like to make a few points, starting with Part 1 on coroners. Despite the fact that the Minister made his opening speech very well, I will give the figures to underline the weakness of this Falconer method, if we can call it that, of legislative steamrollers. The noble Lord devoted four minutes to Part 1; Part 2 got another four minutes but large parts of Part 2, such as infanticide, were never mentioned. Similarly, I do not think we had anything on child pornography and images of children. Part 3 got two minutes. Part 4 on sentencing got three minutes, I think. Part 5 I do not think was mentioned at all, and neither was Part 6 on legal aid. Criminal memoirs had a minute. We had two minutes on Part 8 on data protection, and again nothing on Part 9. I mention this to remind the Minister that we will have to spend quite a considerable time on the various parts of this Bill as it goes through. He might find—or the business managers might—that they have to look quite hard at what gets squeezed out as the Bill goes through the House.

As my noble friend made clear, we broadly support what the Government are doing on Part 1 covering coroners, particularly after we received the letter on Friday that was to ensure that we had seen it in good time for Second Reading—I did not get my copy until Monday—and now that we have heard that Clauses 11 and 12 are to be removed by the Government. Again, to stress how the whole process has gone wrong, it is worth reminding the House, as the noble Lord, Lord Pannick, did, what has happened in the past. Some very similar provisions to Clauses 11 and 12 were introduced without consultation in the Counter-Terrorism Bill and then, after it had gone through another place, they were withdrawn by the Government. Now, a year or so later, they are brought into this Bill, again by the Government and, again, there has been no consultation. Vast amounts of time have been wasted in another place—it could have debated other clauses, but due to its procedures it did not even manage to do that—because the Government were not prepared to consult on this issue in advance. They insisted on going through with it and then they withdrew it.

No doubt the noble Lord will tell us that the Government are a listening Government and that they listened to what we all said, which is why they responded. This is a pretty chaotic way of legislating. If the noble Lord had consulted properly, we might have been in a better position with this Bill. There might not have been the necessity for the Government to withdraw Clauses 11 and 12—quite rightly, we believe—at this late stage after they had been debated to such a considerable extent. Why they withdrew them, I do not know, particularly as they will probably bring them back in another Bill in due course. Perhaps the noble Lord could advise us on whether there were concerns about the timing of the Bill—or was it just because the Government noticed the number of speakers who had put their names down on Friday when the letter came out?

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Part 2 deals with murder, infanticide, suicide and partial defence to murder. As has been made clear by the noble Lord, Lord Thomas, my noble friend Lord Kingsland and many others, this should be part of a much wider reform of the whole offence of murder. Again, the Government should take note of the desirability of consultation on these matters. The House should be reminded of what the noble and learned Lord, Lord Lloyd of Berwick, said when he commented on the Law Commission’s report on murder. He reminded us that the Government completely ignored the first 64 pages, I think it was, of that report, while admitting that the law was a mess.

The noble and learned Lord suggested that the Government should take the whole of Part 2 away, think again and come forward with proper proposals, having taken proper note of what the Law Commission has to say. I do not know whether the Government will take note of what the noble and learned Lord has said or even what the Law Commission said in its report. But I will offer a little bet to the noble and learned Lord that at some stage during the course of this Bill, we will see either this section or another large section mysteriously and rapidly removed by the Government as they try to speed up its passage when they get into problems trying to get it through in good time, bearing in mind the vast range of subjects with which it deals. I do not know whether the noble and learned Lord would want to take up that bet, but if he does not, I will have it with the noble Lord, Lord Bach, instead. But I leave that to him.

Part 2 further deals with suicide and assisted dying recommendations. A range of noble Lords remarked that this should be discussed discretely as a separate Bill—if I remember correctly, the Government suggested a Private Member’s Bill—and that is the correct approach. I would go further and agree with the noble Baroness, Lady Williams. This is a matter on which the Government should take the lead. They should offer a Bill on which there should be a free vote, certainly on this side of the House, but also on all other sides of the House. The Government should provide the appropriate time to deal with a matter of this sort.

We accept the necessity to include provisions about the images of children, to which my noble friend Lord Kingsland referred. But again we heard nothing from the noble Lord when he opened the Bill as to what these clauses will do. It would be right and proper for him to address that matter when he speaks at the end.

I move on to Clause 61, “Hatred against persons on grounds of sexual orientation”. This was the amendment moved in the Criminal Justice and Immigration Bill of last year by my noble friend Lord Waddington, an amendment that was discussed at some length in this House and then voted on on a free vote. My noble friend Lord Kingsland—and I think he got some agreement on this matter from the noble Lord, Lord Neill—suggested that it was unconstitutional, or, if not unconstitutional, jolly nearly unconstitutional, to overturn it sometimes only 11 months after it was passed. It might be that, it might not be that; I accept the advice of my noble friend. To me, it is just plain shoddy. That amendment went through this House, the Government agreed to it purely because they had

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worries about timing on the whole of that Bill, and they signed up to it. I think it behoves the Government therefore, to stick with that and I hope that the Government will accept that something that has been passed by this House and by another place—that has been agreed to—should stay in this Bill and I again await comments from the noble Lord in due course.

I do not want to take up too much time on the next few sections that the noble Lord dealt with, such as Part 3 on criminal evidence, Part 4 on sentencing and the miscellaneous criminal justice provisions in Part 5, but I note everything that has been said. I move on to Part 7 dealing with criminal memoirs. The noble Baroness, Lady Miller of Chilthorne Domer, welcomed it but thought that it had been sloppily drafted. It was the noble Lord, Lord Borrie, though, who probably got it right when he said he had considerable doubts as to whether it was needed at all. I have to say, and I shall put it to the noble Lord, Lord Bach, that this again is something we see repeatedly from the Government—what one might call legislative grandstanding. There are complaints that something is happening, so the Government feel that they must legislate, whether it is necessary or not. As the noble Lord, Lord Borrie, has told us, there are already adequate remedies in place. So we are doing something that the Government insist is necessary, but we advise is not necessary. Again, I suggest to the noble Lord that he properly takes the advice of his noble friend and quietly withdraws that section of the Bill. It might speed up its passage through this House.

I could go on, but I will not, because at this stage all of us would be grateful to hear from the noble Lord the answers to a great many of the questions that have been put to him. I will end again with a plea. He suggested that when we were in government, we produced massive Bills. Well, we actually did learn and realised that smaller, more discrete Bills very often were a more effective way of legislating and produced better law. I do hope the Government can learn that in the short time they have left available to them.

9.23 pm

Lord Bach: My Lords, this has by and large been a constructive debate and I thank all noble Lords who have taken part. It has been a debate of real quality and I thank noble Lords for giving up their time.

I also welcome the broad measure of support from all sides of the House for a number of the individual provisions in the Bill. The poor Bill itself has suffered a bit. It has been described in various ways today: as a dog’s breakfast, a ragbag, a Christmas tree, as elephantine, as a whole series of Bills and as a myriad mix—and those were only the nice phrases about it. I most liked the description by, I think, the noble Lord, Lord Elystan-Morgan, who said it was “compendious”. I am not quite sure I understand what that means, but I like the sound of it.

I am pleased, too, that the need to change the law on coroners has been largely accepted. It is something that has long been wanted. We need to give the system a new lease of life, give bereaved families a stronger voice, and provide a more effective, transparent and

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responsive service generally. I apologise to the noble Lord, Lord Henley, for making my opening speech much too short for his liking; I shall try to make up for it now if I possibly can. But I should gently remind him, when he criticises us for introducing too many Bills, of some interesting figures. Between May 1997 and May 2007, 56 pieces of Home Office legislation were passed. It might be said that that number is far too many, but it compares with 68 Acts in the period between 1990 and 1997, including 19 Bills in the pre-election Session of 1996-97. Perhaps the noble Lord has some experience of what he speaks and I have to listen to what he says.

It is not surprising with such a wide-ranging Bill that a number of noble Lords have taken severe issue with some of the content. Even where there is general support, noble Lords quite properly want to probe the detail. I welcome that and look forward, not with completely unmixed views, to a detailed scrutiny of the Bill in Committee. I agree with the noble Lord, Lord Henley, that we will be here for a long time, but we will get through the Bill. A large number of points have been made and I have a limited time in which to speak, so I shall do my best to answer as many questions as I can. Before I indulge in that, the noble Lord, Lord Goodlad, referred to the report of his committee, the Constitution Committee of this House. It was published only last week. We welcome the committee’s contribution to the debate on the provisions in respect of certified coroners’ investigations and assessment notices. We are studying the findings and will respond as quickly as we can.

I now move straight to Part 1 on coroners. Many noble Lords have welcomed the decision to withdraw Clauses 11 and 12, although I must say that I agree with my noble friend Lady Dean when she said that she was at the same time a little sorry. No doubt noble Lords were looking forward to quite a bit of fun on those clauses, which dealt with the need to protect sensitive material that may be relevant to a coroner’s investigation. As I made clear in my opening speech and others have reminded me, if I ever were to forget, although we are withdrawing the clauses, the issue has not gone away. The noble Lord, Lord Pannick, suggested that rather than establishing an inquiry under the Inquiries Act, we should lift the bar on the admissibility of intercept evidence. I should make the position clear on the Inquiries Act, although no doubt we will debate the issue in some detail. I said that we would consider using the Act in the rare cases where these matters arise, but in all of them, rare as they may be, we will, if possible, try to work under the existing system. That is our first preference.

The noble Lord, Lord Kingsland, made a series of points about coroners and asked whether the Government will bring forward an amendment to constrain the ambit of an inquiry established to investigate the circumstances of a death. Our immediate response is to say no, we do not believe that an amendment is necessary. The terms of reference of the inquiry itself under the Act will limit the inquiry accordingly. He mentioned the duty of care in the “Marchioness” case. Clause 34 enables the Chancellor to issue statutory guidance setting out how the coroner system will operate for those who come to use it. It is intended

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that a charter for the bereaved will be the very first guidance issued, and a copy was published with this Bill. It sets out in detail the standards of service the bereaved can expect and clarifies how they can challenge coroners’ decisions.

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