Criminal Justice Bill

Part of the debate – in the House of Lords at 4:15 pm on 8 October 2003.

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Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Conservative 4:15, 8 October 2003

In moving Amendment No. 168A, I shall speak also to Amendments Nos. 169, 169A, 169B, 170 to 172N, 173A, 173B, 239B, 239C and 250A. Most of those amendments stand in my name but some are also in the name of the noble and learned Lord, Lord Ackner. Amendment No. 250A is a government amendment.

My noble friend Lord Renton has just asked me whether I had an objection to such a large grouping. I had to confess to him that it was done with my agreement. As I explained to the Committee on Monday, there are a few occasions in our considerations in Committee where we have agreed to a large grouping, simply because it gives us the opportunity to debate some of the major issues which concerned the Chamber at Second Reading. In considering them, we hope that the Chamber may find itself able to act as the arbiter, as we were asked to do by the noble and learned Lord the Lord Chief Justice.

Although this is a large group of amendments, it deals with a single issue—the membership and operation of the Sentencing Guidelines Council to be established by the Bill. We on these Benches welcome the establishment of the council. However, we have proposed the large number of amendments because we wish to address the concerns expressed about the detail of the Government's proposals.

On listening to the Home Secretary on the radio and television I understand that he is often given to pulling the tail of these Benches. He said that in another place my right honourable friend Mr Letwin agrees with the Government and then these Benches simply go about pulling the Government's plans apart. That is not so. Even though the noble Lord, Lord Borrie, assents, I have to disagree with him. When we agree with the Government in another place, we always clearly point out any reservations. At the moment this Chamber is still able to have time to express those reservations and to give the Government the opportunity fully to persuade us that they are right. So we wait to see.

The group of amendments gives the Committee the opportunity to consider the issue both of the membership of the council and of the role of Parliament in scrutinising the guidelines that it will produce. At this stage I make it clear that all these amendments are probing. I want to consider fully the Government's response before I decide what amendments to bring back on Report and on which to take action.

This is one of the crucial issues in the Bill where it appears that there is a difference of opinion between the executive and the judiciary. We have tried to reflect upon the arguments advanced on both sides of the debate. I refer, in particular, to the arguments put forward by the noble and learned Lord the Lord Chief Justice at Second Reading and in the paper which he deposited in the Library of this House.

When the Bill was first introduced it provided for the council to have only judicial members. In another place the Government introduced amendments to provide for a number of non-judicial members. The judiciary's view on the membership of the council has been made clear by the noble and learned Lord the Lord Chief Justice. At Second Reading, he said:

"If the council is to carry real clout, as it must if it is to be effective, its membership should be confined to the judiciary".—[Official Report, 16/6/03; col. 574.]

I invite the Committee to reflect carefully on the words of the noble and learned Lord, which contrast markedly with the assertion of the then Minister at the then Lord Chancellor's Department that the membership arrangements now in the Bill would:

"maintain the confidence of the Court of Appeal and the judiciary more widely".—[Official Report, Commons, 20/5/03; col. 915.]

If the council is indeed to be a lasting innovation and have a positive impact on the criminal justice system, as we certainly hope, its recommendations must command the confidence of the judiciary. Equally, they must command the confidence of the public. It is clear that the present arrangements, which provide for no scrutiny of sentencing guidelines, do not command that widespread and full public confidence which is necessary if the criminal justice system as a whole is to command respect.

So our solution before the Committee today tries to take both those factors into account. The Government's proposed membership of the council is wide. We would restore their original position—the Government's position in another place—namely that the council be composed only of sentencers. That is the key concern of the judiciary and, mindful of the objective of ensuring public confidence, the amendments then provide scrutiny of the guidelines by a Joint Committee of both Houses of Parliament. Thus, the public, police, victims' groups and others involved in the criminal justice system should gain an input into the process through their representatives in Parliament.

In another place, the Government made much of the need for parliamentary scrutiny of the council's proposals, but the Bill provides no statutory mechanism for such scrutiny. My amendments would therefore give statutory backing to the Government's commitment to parliamentary scrutiny given in another place.

On Report in another place, the Government's view on requiring all the guidelines to be subject to the affirmative procedure in Parliament was that:

"It would be inappropriate to ask Parliament as a whole to debate and vote on the detail of every sentence. There is a huge value in not asking Parliament as a whole to vote on every single guideline".—[Official Report, Commons, 20/5/03; col. 916–7.]

We agree. So in drafting the amendments and building on proposals made by the Opposition in another place, we have taken that view into account. A vote in both Houses on every piece of guidance would not occur if our amendments were incorporated in the Bill.

The parliamentary scrutiny procedure proposed in the amendments would operate as follows. The Sentencing Guidelines Council would send its draft guidelines to the Joint Committee of both Houses. The Joint Committee would then have six weeks to consider whether to refer the guidelines back to the council. If it did not decide to refer the guidelines back, at the end of the six-week period, they would come into force through a negative resolution statutory instrument. If the Joint Committee decided to refer the guidelines back to the council, the council would then consider the committee's reasons for doing so when making any amendments to them. It would then resubmit the guidelines to the Joint Committee, which would have a further six weeks to consider and, if necessary, send the guidelines back again. If there was a clear disagreement between the Joint Committee and the Sentencing Guidelines Council and the guidelines were referred back for a third time, Parliament should act as the arbiter.

The amendments provide for the affirmative resolution procedure to apply to the guidelines in such a case. Thus the guidelines would be formulated by sentencers but scrutinised and endorsed by Parliament. We hope that the procedure established by the amendments would strike a balance. The guidelines would be formulated by judges but scrutinised here in both Houses in the form of the Joint Committee. In that way, we have tried to provide a mechanism that will retain the benefits of the Bill's proposal while ensuring that the process will command the confidence of the judiciary, Parliament and the public.

My right honourable friend Mr Oliver Letwin said of the Bill at Third Reading in another place:

"One of its best elements, although we have not quite agreed on its form, is the process that it seeks to establish for deciding on sentences. We can argue about the precise format of the process for agreeing sentences, but it is common ground between the Government and us that there needs to be a transparent and proper process so that none of us wakes up on a Monday morning and suddenly discovers that the guidelines have been altered, that the Home Secretary and the Lord Chief Justice are locked in mortal combat. Indeed, combat should be avoided on the whole in the proceedings of this nation".—[Official Report, Commons, 20/5/03; col. 970.]

My amendments seek to avoid any confrontation and combat; they seek to provide a pragmatic answer to the questions that have been posed in both Houses; and I hope that they achieve a consensus. I beg to move.