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I understand that the Conservative Front Bench feel that an order allowing prisoners to vote would better come from the other place. I understand that view, but think that it would be even better if the Minister were able to accept my logic and agree to consider my amendment rather than reject it out of hand. After all, I am offering a solution to a situation which even he must admit has taken the Government an inordinately long time to resolve. I hope that the reasons he gives for the Government's continued defiance of the law are neither electoral nor populist. As I said at the beginning, I believe that this is a common-sense and not a party-political matter. I beg to move.

Lord Williamson of Horton: After that Ciceronian speech by the noble Lord, Lord Ramsbotham, if he wishes to test the opinion of the House I would vote with him, but perhaps not with the usual enthusiasm with which I pass through the voting Lobbies. My own view has been consistent for a long time-that all prisoners should have the vote. I know that that view is not shared and that a lot of people do not believe that, but it is my view. The amendment before us is fully adapted to the situation that arises because of the decisions of the European Court, so there is a lot to be said for it. However, it does not go as far as I would want, which is not going to be possible today. The disadvantage of the amendment is that we do not know whether, in reality, a lot of prisoners will get the vote or very few will get the vote. It is not possible to draw a conclusion on that from this amendment. I do not say this in a pejorative sense at all, but the amendment gives us half a cake, and we do not know whether it is a big half or little half. In view of our situation with regard to the European Court judgment, I would support the amendment if the noble Lord wished to put it to the vote.

Lord Thomas of Gresford: In accordance with the Liberal Democrat policy over a long time, we would support the noble Lord if he chose to take this amendment to the vote.

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Lord Hunt of Wirral: My Lords, I declare my interest as a partner in the national commercial law firm, Beachcroft LLP. I join the noble Lord, Lord Williamson of Horton, in paying tribute to a very impressive speech by the noble Lord, Lord Ramsbotham. As on a previous occasion, he seems already to have outlined what I was going to say before I have said it. However, I pay tribute to what appears an attractive solution to the currently stalled public debate on prisoner voting rights. His amendment would attach the voting rights, which may be allowed or denied, according to the crime committed and the sentence passed. On the face of it, that seems an elegant solution to the vexed question of prisoner voting rights, which is still to be settled following the ruling of the European Court of Human Rights nearly eight years ago. Although it will not satisfy the noble Lord, Lord Williamson of Horton, at least I can see the arguments that the noble Lord, Lord Ramsbotham, has put forward.

Our position, which the noble Lord has already kindly outlined, is that this must be a matter debated by the other place as fully as your Lordships' House always appears to discuss important issues such as this. As we are talking about an extension of the franchise, or withholding that franchise from adults, this is very much a matter in which I strongly believe the elected Chamber must have its say. It was helpful that the noble Lord, Lord Thomas of Gresford, outlined his party's policy. I concede that my party is not at present in favour of extending the franchise to prisoners. While my honourable friends in the other place would try to convince the other place that that opinion is correct, they must first be allowed the chance to do so. It is very much up to the Government to make time for that debate to take place. As other noble Lords have said, the ball is now firmly in the Government's court. Of course, I do not deny the importance of this debate taking place in this House, but, as all noble Lords will be aware, although we will be sending the Bill back for consideration in another place, there will be nothing like enough time for a properly considered debate on this issue. For that reason, I make it clear that we will not be able to support the noble Lord should he push the amendment to a vote.

6.45 pm

Lord Tunnicliffe: My Lords, these amendments provide for the replacement of the current provision on voting rights for convicted prisoners with a system by which a prisoner's right to vote is determined by the court that sentenced them. As the noble Lord has reminded the House, the European Court of Human Rights in the case of Hirst has ruled that the current statutory prohibition on voting by convicted prisoners is in breach of the convention rights. In response to the judgment, which was delivered in October 2005, the Government undertook a two-stage consultation on this issue. The responses to the first stage consultation paper indicated that there was no great support for the option of allowing the sentencing court to decide on whether a prisoner retained his or her right to vote. This is being further tested as part of the Government's second-stage consultation, which closed on 29 September this year.

The Government included in their recent consultation on prisoner voting rights one option that allowed judges some discretion in enfranchisement, in some

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circumstances. However, the Government's policy is that enfranchisement of convicted prisoners should be linked to the seriousness of the offence that they have committed, through an approach based on the custodial sentence handed down. The removal of the right to vote pursues a number of intertwined aims designed to foster a healthy democratic society. The Government remain of the view that the right to vote goes to the essence of the offender's relationship with democratic society, and the removal of the right to vote in the case of some convicted prisoners can be a proportionate and proper response following conviction and imprisonment. To this end, the Government proposed a number of policy options in the second-stage consultation paper that linked enfranchisement to sentence length. The Government are currently considering the responses to that consultation and will provide their fuller response in due course.

What the noble Lord proposes appears to envisage that the type of offence, or offences, for which a prisoner has been convicted should be the principal determinant of his right to vote. It is not based, as we have been proposing, upon the length of a prisoner's sentence. It is the Government's view that the sentence length best reflects the seriousness of the actual crime that prisoners have committed, as reflected in the length of the sentence that they have received from the sentencing court. In passing that sentence, the judge will in most cases already have been through the exercise of taking into account all the circumstances of the offence and those of the offender, and will have determined that not only is a custodial sentence the appropriate disposal, but also that its length will be not inconsiderable. An approach based on sentence length therefore provides clarity on the link between the seriousness of the offence committed and enfranchisement.

To follow the route towards prisoner enfranchisement that the noble Lord is proposing would invite a number of challenges, both in terms of policy and practice. We do not consider that the removal of the right to vote should be solely a matter for the sentencing court. The Government's view has consistently been that it is for Parliament to debate and decide on the extent of the franchise and we continue to hold to that view. It is for this reason that the policy options set out in the recent consultation paper all allow for enfranchisement limited by sentence length. The Government are considering these options and their proposals will be fully debated by Parliament in due course.

In practical terms, there are a range of issues to be worked through, should an approach to enfranchisement based on judicial discretion be pursued. Consideration would need to be given to the operational impact on the courts, were this additional burden to be placed on them, and whether any transitional provision would be needed for those prisoners already serving sentences at the time that any new legislation came into force. But most importantly, there is a question of process to be considered. Given that the Government have not yet provided their full response to the second stage consultation, it would be premature to introduce legislation before we had the opportunity to give proper consideration to all the issues that an approach to enfranchisement based on sentencing, with or without a judicial discretion, will entail. A number of responses have been received

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to the second stage consultation and it is only right that we take time to consider those and reflect on our position before taking further steps towards enfranchising prisoners.

I thank the noble Lord for his Ciceronian-if that is the right term-speech and I will not try to match it or go into the chronology in any greater detail. I will touch briefly, however, on his quoting from the Evening Standard. For many years, the Evening Standard had a propensity to quote me quite regularly in my previous role, and the difference between what I had said and what was subsequently printed was often extremely wide. I urge the noble Lord not to take quotes in the Evening Standard too seriously. I can assure him that the Lord Chancellor does not hold the ECHR or the Human Rights Act in contempt and is fully supportive of the Act, the ECHR and all its provisions. I hope that the noble Lord, Lord Ramsbotham, will agree this approach and withdraw his amendment.

Lord Ramsbotham: Before the Minister sits down, could he shed any light on why it has taken five and a half years to go through the process so far?

Lord Tunnicliffe: I do not feel that that would add to the issue of the debate. That is about the past and I have set out what we are doing now. I hope that will have the support of the House and that the noble Lord will withdraw his amendment.

Lord Ramsbotham: My Lords, I am grateful for that. I am also grateful to those who have spoken and for the Minister's reply. This issue will not go away and we shall no doubt hear about it on the Floor of the House on several more occasions until it is finally resolved. What disappointed me about the second consultation was that to start with, most of the questions were about the length of the sentence and not the seriousness of the offence. I deliberately coupled the two because I do not think that any one or either is necessarily the deciding factor.

I absolutely accept the points made about the franchise and where that should be decided. That matter must be taken into account and not ignored. The sensible thing to do at this stage is not to press the matter further, but to re-examine what has been said and, if the Minister and the Conservative Front Bench agree to consultations, consider carefully what one might do at Third Reading. In the mean time, I beg leave to withdraw the amendment.

Amendment 81 withdrawn.

Amendment 82 not moved.

Clause 115 : Sentencing guidelines: duty of court

Amendment 83

Moved by Lord Lloyd of Berwick

83: Clause 115, page 69, line 30, leave out "follow" and insert "have regard to"

Lord Lloyd of Berwick: My Lords, the purpose of this amendment is to keep the law as it is now and has been ever since the Sentencing Guidelines Council was

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created in 2003-and indeed since long before that. Section 172 of the Criminal Justice Act 2003 provides that every court,

Those are the words of my amendment and they represent the Government's view about the correct test as recently as six years ago. The question is whether anything has happened since 2003 to justify changing the law so soon. The existing test has been considered in a number of cases in the Court of Appeal, most notably in the case called the Queen against Oosthuizen 2006, 1 Criminal Appeal Reports (Sentencing), at page 385. In none of those cases has the test been found wanting, but more important by far, my noble and learned friend Lord Woolf said in Committee that the present test was working perfectly satisfactorily.

The question is: why are we being asked to change it now? That presupposes an answer to a preliminary question of whether we are indeed being asked to change the existing law, because different views were expressed in Committee on that matter. My noble and learned friend Lord Woolf thought that the new test would, if anything, give judges greater discretion. That was on 15 July at col. 1220 of the Official Report. On the other hand, the noble Lord, Lord Dholakia, and the noble Baroness, Lady Linklater, said or at least implied at Second Reading that the new test would give the judges less discretion-in other words it would make the test more robust. However, at col. 1223 of the Official Report of 15 July, the noble Baroness, Lady Linklater, said that she stood shoulder to shoulder with the noble and learned Lord, Lord Woolf. I am not sure quite how she will manage that but we will wait and see.

I asked the noble Lord, Lord Bach, the same question about where he stood. I asked whether he regarded the test as being more or less strict. His view was that the new test would be slightly stricter and he put particular emphasis on the word "slightly". That reminds me of the answer supposed to have been given by the parlour maid when reprimanded by the lady of the house for having had a baby. She replied that yes she had had a baby but it was only a little one.

In my view, it is clear beyond any doubt that the new test is indeed stricter than the old one. That was the view of the Gage committee; otherwise it would not have proposed the change in the first place. The words "must follow ... unless" something happens would look to any judge as if the burden of proof were being reversed. In any event, why would Parliament change the test unless it was intending to have some effect, presumably to reduce judicial discretion?

Going on from there, the question is whether the Government have made good the case for reducing the discretion of judges. The reason given by the majority of the Gage committee is that change was needed in order to provide the,

I will take each of those as briefly as I can in reverse order. On predictability, paragraph 9.4 of the report states that,

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That is all about building prisons. However, in paragraph 8.4, the report had already stated that,

Quite so: even if the guidelines were made compulsory, it would not help us to predict the prison population next year, let alone in 2015 or 2020. It depends on far too many other factors, so we can forget about predictability.

Secondly, transparency, like accountability, is a current buzzword, but I fail to see how it has any application at all in this context. Thirdly, consistency is, of course, a desirable objective in sentencing, but absolute consistency is unobtainable, as we all know. Even within the guidelines, there will be cases that look inconsistent with each other, but which in fact will not be. I doubt whether changing the test on which cases can be taken out of the guidelines will make the slightest difference to consistency.

For those reasons, I, with great respect, disagree with the majority view of the Gage committee. I much prefer the reasoning of the minority, set out in paragraph 7.20. In particular, it makes the point that the 2003 guidelines should be given more time to bed down before we change the test. That was the point, we are told, to which many of the respondents attached great importance, and so would I. It is the point on which I know the Magistrates' Association has expressed strong views. I hope we will hear about those from my noble friend in a few moments.

Judges and magistrates have been put under enormous pressure by the amount of recent legislation affecting sentencing. Since 1993 there have been no fewer than 56 separate enactments which bear on sentencing, all of which are set out in annexe B of the report. Sentencing has never been easy, as I know from my experience. It is now becoming a nightmare. Please, let us leave the present test as it is until the new sentencing council has come into existence and has prepared new guidelines. There will then be plenty of time to see whether the present test is working. I beg to move.

7 pm

The Earl of Listowel: My Lords, I support these amendments, to which I have attached my name, having had concerns raised with me by the Magistrates' Association. My noble friend Lord Tenby is unable to speak today, but in Committee he spoke eloquently about his concerns as a long-standing magistrate and a representative of magistrates' voices in your Lordships' House. In 2003 the noble and learned Lord, Lord Falconer, announced that the Government were to spend £4 million to recruit a more diverse magistracy. He described magistrates as the cornerstone of the justice system. However, surely by whittling away at the power of magistrates we risk devaluing their work and making it less attractive and more difficult to recruit to. Indeed, much of magistrates' work has been taken away from them by the increase in the use of out-of-court settlements and penalties.

I apologise for not being present earlier in the debate. I was co-hosting a meeting for young people in Portcullis House. At that meeting, Moira Gibb, the

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chair of the Social Work Task Force appointed by the Government, spoke about social work and the dire lack of social workers. There is a 33 per cent vacancy rate in some London boroughs. She said that social work has become too mechanistic, with too much box-ticking and centralised control.

A recent authoritative report, the Cambridge Primary Review, said:

"Investment in primary education has risen dramatically and many recent policies have had a positive impact".

It goes on:

"The principle that it is not for government or government agencies to tell teachers how to teach, abandoned in 1997, should be reinstated".

The report calls for,

I submit that there is a pattern to this. There is a whittling down of the people on the front line who have experience and the ability to make judgments and take the best decision for the case in hand. That is all the more reason to support the amendments.

Lord Hunt of Wirral: My Lords, we too have added our support to the first two amendments in this group, along with the noble and learned Lord, Lord Lloyd, and the noble Earl, Lord Listowel. For us, these are the key amendments. I echo much of what the noble and learned Lord has just said. Once again, we are greatly indebted to him for the initiative that he has taken in bringing forward this exceedingly important issue.

As has been pointed out, the drafting of the Bill instructs the court to follow any sentencing guidelines unless it is satisfied that it would be contrary to the interests of justice to do so. We are strongly of the opinion, already voiced, that the appropriate words should remain "have regard to" any relevant guidelines. It really is not right for the Government to seek to tie the hands of sentencers in this way.

I recall the debate in Committee. The Minister rather struggled to defend the change in emphasis from the position one would expect the courts to be in-of having to have regard to guidelines-to one where they must follow those guidelines. I think the Committee was of the view that the Minister had been unable to identify any real advantage in the Government's approach. The Government have completely underestimated the strength of feeling on all sides of the House about their proposals. The Minister's claim that judges' independence would not be infringed by the wording being changed in the way that he proposed was not warmly received by noble Lords. I know now, thanks to the noble Earl, Lord Listowel, that the Magistrates' Association is also up in arms over the wording of Clause 115. We should pay careful attention to that view.

At the conclusion of the debate in Committee, we suggested to the Government that they might wish to take advantage of the long Summer Recess to reflect on what noble Lords had said and come forward with their own proposals to ameliorate these two sentences in the Bill, which, to summarise, are widely seen as an assault on the independence of the judiciary. Sadly,

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they have not done so. We strongly believe that Amendments 83 and 84 ought to be adopted in place of the restrictive language for which the Government are presently opting.

Lord Woolf: My Lords, it is an unhappy situation to find myself not in total agreement with my noble and learned friend Lord Lloyd. I remember as a young barrister being led by my noble and learned friend. I regarded it as a privilege, and sitting behind him, as I do today, my natural instinct is to follow someone whom I regard as my natural leader. However, having thought about the matter with some degree of care, I urge your Lordships to see that there is common sense behind the proposed change.

We are, I think, all agreed that there is not a substantial difference between the two rival wordings. I submit that that is the situation because of the critical words that appear at the end of subsection (1):

Whoever is sentencing-whether it is a High Court judge or someone at one of the different levels below that, through the magistracy-is concerned about doing justice. It is critical that, when a judge sentences, he should, at the end of the process of reasoning that goes into sentencing, be satisfied that he is doing justice. A very important part of what is proposed in Clause 115 is that that exercise should be a two-stage process. The fact that it is done in a two-stage process is, in my contention, more likely to lead to a just result than if we merely state, "having regard to". There are all sorts of things that a sentencer has to have regard to, but the reason why we now have a Sentencing Guidelines Council is that there should be meaningful guidance given by that council which, in the ordinary way, any sentencer should follow.

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