Sentencing Bill [HL] - Second Reading

– in the House of Lords at 4:30 pm on 25th June 2020.

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Lord Keen of Elie:

Moved by Lord Keen of Elie

That the Bill be now read a second time.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, I believe noble Lords will agree with me that the law must be accessible, understandable and predictable. Unfortunately, with the greatest will in the world it has become difficult to say this about one particular aspect of our criminal law, that of sentencing procedure. Over the course of a generation, this body of law has grown incredibly complex and disparate. We have seen numerous examples of even the greatest legal minds in the country spending too much time trying to disentangle which provisions apply in individual cases. That is to say nothing of the challenge of victims and offenders themselves understanding the rules that will govern their case. Such a lack of transparency must be addressed.

That is why, in 2014, the Government agreed that the Law Commission should undertake a project designed to consolidate sentencing procedural law. The resulting consolidation Bill before your Lordships brings together the provisions which prescribe what happens to an offender who has been convicted of, or pleaded guilty to, a criminal offence. The substantive provisions of the Bill make up what is to be known as the Sentencing Code. The Sentencing Code contains the procedural provisions which courts need to rely upon during the sentencing process. This includes general provisions applying to sentencing courts, such as the purposes of sentencing, the duty to explain sentences and statutory aggravating and mitigating factors. It also includes the different types of sentence, such as fines, community sentences and custodial sentences, and also behaviour orders which can be imposed in addition to a sentence: namely, criminal behaviour orders, sexual harm prevention orders, restraining orders and parenting orders.

To aid accessibility and to help minimise the risk of error in the sentencing process, the Sentencing Code structures these provisions in an order which follows the chronology of a sentencing hearing. Certain provisions, such as the power to impose an extended sentence, are split by age of the offender. The Sentencing Code also includes signposts to other legislative provisions which will remain outside the Sentencing Code, to ensure these are not overlooked during the sentencing process.

The Bill also consolidates certain uncommenced provisions, such as the minimum sentencing provisions in the Offensive Weapons Act 2019 relating to certain offences concerning prohibited weapons and the possession of corrosive substances. These uncommenced provisions can be found in Schedule 22 to the Bill, separate from the main body of the Sentencing Code. This approach is intended to ensure that users of the Sentencing Code can be completely confident that the provision they are looking at is in force. If an uncommenced provision is commenced in the future, consolidating such a provision in Schedule 22 should make the commencement process straightforward.

The Law Commission consulted on a draft version of the Bill in 2017, and in 2018 conducted a separate consultation relating to the disposals in the Sentencing Code that are available for children and young persons. Both consultations received widespread backing from judges, lawyers and academics.

I remind the House that this Bill does not introduce any new sentencing law; nor does it make changes to existing offences and penalties. Indeed, as it is a consolidation Bill, it is not open to either House to seek to amend it in order to make such changes.

I finish by acknowledging that the Government are extremely grateful to the staff at the Law Commission and parliamentary counsel for their detailed and thorough work in this area over the past five years. The creation of this Bill is a tremendous achievement by the Law Commission and bears testament to the diligence and persistence with which it has approached this consolidation exercise.

If your Lordships are content to give the Bill a Second Reading, it will be referred to the Joint Committee on Consolidation Bills in the usual way. I beg to move.

Photo of Lord Judge Lord Judge Chair, Sentencing (Pre-consolidation Amendments) Bill [HL] Special Public Bill Committee, Convenor of the Crossbench Peers 4:36 pm, 25th June 2020

My Lords, today I feel the beginning of the relief of the Victorian poet who reminded us:

“That even the weariest river

Winds somewhere safe to sea.”

For many years now—certainly since the start of the millennium—criminal justice has from time to time provoked periods of political and consequently legislative frenzy. Indeed, we can shortly anticipate a new manifestation, telegraphed for us in the Conservative Party election manifesto. But this is an apolitical Bill that has nothing to do with party politics and simply addresses the chaos created by endless legislation, both primary and secondary, that has directly or indirectly impacted on the sentencing decision.

It will not make the sentencing decision for the judge or magistrate any easier, but what it does—and we are indebted to the brilliant imagination of Professor Ormerod and his team at the Law Commission and to the parliamentary counsel, who identified pinch points—is to enable the court to get exceptionally convoluted technicalities right. It does so by clean-sweeping the technicalities into a code.

Strikingly, the Bill ensures that no one will be at risk of being sentenced to a heavier penalty than could have been imposed at the date of the commission of the offence; this is obviously fundamental. Retrospectivity is prevented. Equally strikingly, the code is drafted in such a way that any future legislation relating to sentencing and procedure can be pitted into the code. This is a living document, capable of flexible amendment, so a gauntlet is thrown down to us parliamentarians to make sure we adopt it.

Any judge trying criminal cases will appreciate how typical this single example from my own experience is. The defendant was sentenced to imprisonment 12 years ago. The issue for him is: how long? When will I be out? Naturally, he asked his lawyers how long it would be. When he arrived in prison, calculations were made on the basis of the then legislation and he was told that his release date would be such and such. That is told to every prisoner on arrival, because it matters to him and the prison authorities, so he knew. As his release date approached, some bright individual within the prison or the Home Office wondered whether that release date was right. It was checked by the prison authorities, the Home Office and eventually a judge; it came to the Court of Appeal. From among the various options, we made a decision. We decided that he had been kept in custody too long, wrongly imprisoned.

I am sure your Lordships will forgive me if I quote what I said then. I do so because I would not change a word of it now. I said that

“elementary principles of justice have come … to be buried in the legislative morass. … It is outrageous that so much intellectual effort, as well as public time and resources, have had to be expended … to discover a route … to what should be … the simplest and most certain of questions”.

This Bill will clear up that morass.

Photo of Lord Blunkett Lord Blunkett Labour 4:39 pm, 25th June 2020

My Lords, I am very pleased to follow the noble and learned Lord and to pick up the issue of trying to find our way through the morass, to which, I have to admit, I contributed as Home Secretary, with responsibility for justice and sentencing, with a plethora of legislation between 2001 and 2004. The only part of the Criminal Justice Act that I am not proud of is the element relating to indeterminate sentences, not because the intention was wrong, but because the implementation was left far too much to chance—or what I might have called, to pick up the pieces from the earlier contribution, common sense.

The 2012 research undertaken by the Law Commission, to which I also pay tribute, discovered that 36% of sentences were wrongly applied, in one way or another, which is staggering. I had hoped that the Sentencing Guidelines Council, which we set up in the Criminal Justice Act, would have been able to provide the kind of guidance that the noble and learned Lord just referred to, but sadly not. The codification, alongside this consolidation, gives us the opportunity for much greater clarity for the offender, those perpetrated against and those operating the criminal justice system.

I will refer briefly to Part 4 and seek the Minister’s clarification on an issue that is now under extended sentences but was under IPP. It is where somebody is involved in a breach. We still have people, even from 2012, when the IPP was abolished, returned to prison and given a sentence relating to the IPP for, sometimes, a minor breach, which results in extending an already dubious procedure. Could the Minister clarify whether, under the clean break element of this, these matters can now be cleared up once and for all in the interests of justice? I think it is in Clause 273, but there are 420 clauses. With the capacity I have at the moment out of London, I am relying a little more on the seat of my pants than I normally would.

Finally, I hope the follow-through to this will be extremely good training for all those involved at every level of the criminal justice system. It struck me in 2003 that that really was the missing element.

Photo of Lord Campbell of Pittenweem Lord Campbell of Pittenweem Liberal Democrat Lords Spokesperson (Defence) 4:42 pm, 25th June 2020

My Lords, I must confess to some diffidence in finding myself between the noble and learned Lords, Lord Judge, Lord Hope of Craighead and Lord Mackay of Clashfern, since, unlike them, I have never had the responsibility of sentencing anyone. Indeed, it is difficult to resist the temptation to adopt the elegant observations of the noble and learned Lord, Lord Judge, brevitatis causa, as lawyers are accustomed to say, but I wish to make some observations of my own.

There can hardly ever have been a legal Bill that enjoys such judicial and professional support as this one. Indeed, as has been said on at least one previous occasion, we could almost pass this Bill by acclamation. The Law Commission has fulfilled its responsibility to make the law clearer, shorter and more accessible, having rightly judged that sentencing legislation was inefficient and lacking in transparency. How could it do otherwise, as has already been referred to, when the analysis of 262 randomly selected cases from the Court of Appeal in 2012 revealed that 36% were illegal sentences? The question that arises from that is: what guidance was given to those who passed those sentences and what happened to those who had been sentenced in that way, illegally?

The Bill’s approach is novel, with the creation of a code allied to the use of a clean sweep. My question is whether a similar approach may be appropriate in other areas of the law. Indeed, I suppose that my question is really for the Law Commission: is it now looking for other such opportunities? I welcome the exception to protect the fundamental rights of an offender and the Bar Council’s pragmatic endorsement of the proposals on Article 7 of the European Convention on Human Rights and on retroactivity.

Finally, there is an excellent impact assessment that justifies close reading, but for some reason there are no Explanatory Notes to the Bill. Why not?

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative 4:45 pm, 25th June 2020

My Lords, the number of Acts consolidated in this Bill shows the large number of Acts that are relevant to sentencing. Is it any wonder that judges, being human, sometimes made mistakes? When I became a Lord of Appeal in Ordinary, I was appointed to the Consolidation Committee then presided over by Lord Brightman. He taught me what a demanding task consolidation is. It involves checking that the law you put into the consolidation is correct and, more difficult, making sure that you leave nothing out.

I thank from the bottom of my heart everyone who has been involved in this massive enterprise. That includes Law Commissioners and their staff, Ministers and their officials, staff and department, and parliamentary counsel and their staff. Now we have the massive product of all their work. It is extremely difficult to say what happens now. Will it just start to build up again? In relation to that, in this Bill there is the important provision that, where something covered by the scope of this Bill is amended by an Act of Parliament, that Act must amend this Act to include it. That seems to me a very excellent way of preventing the building-up anew of the situation about which my friend the noble and learned Lord, Lord Judge, spoke in the case to which he referred.

Photo of Lord Hope of Craighead Lord Hope of Craighead Chair, High Speed Rail (West Midlands - Crewe) Bill Select Committee (Lords), Chair, High Speed Rail (West Midlands - Crewe) Bill Select Committee (Lords) 4:47 pm, 25th June 2020

My Lords, I am happy to join those who have already spoken in welcoming this Bill and paying tribute to its chief architect, Professor David Ormerod. Like almost everyone else, all I have seen so far is the online version, but that is enough for me to appreciate what a fine piece of work this is.

What impressed me most as I worked through the first 24 pages, which set out the Bill’s contents, is the clarity and simplicity of the layout. Accessibility in a Bill of this kind, which contains so much detail, is the key to its success. It is also the key to the future. The law never stands still; this is especially true of the law about sentencing. This Bill must be able to accommodate changes, as my noble and learned friend Lord Judge has pointed out. It must be a living code. I believe that its designers have done everything possible to achieve that.

In this respect its design can be compared with a consolidating measure with which I was familiar, the Criminal Procedure (Scotland) Act 1995. It began its life as a Bill of 309 clauses and 10 schedules. It has the same kind of layout, so it has been able to accommodate many changes over the past 25 years without losing its shape and accessibility. It now has 450 sections and 12 schedules. The Bill we are discussing today has 420 clauses and 16 schedules, so it has a bit of catching up to do. The important point is that, like the 1995 Act, its design lends itself to a steady enlargement of this kind while remaining accessible and easy to use.

As for the future—as to what happens now, as the noble and learned Lord, Lord Mackay of Clashfern, put it—the responsibility now passes to government. The designers have done all that they could possibly to make the Bill fit for a long life. For that to happen, however, it must now be firmly understood within government that changes to the law on sentencing must always be made only by changing the code which the Bill lays down. We must not resort to their being scattered around in so many different places, as they have been until now.

Another point lies within the responsibility of government. Most of us who want to keep up with the current state of statute law have to go online to the UK statute law database. In the past, the updating of this system has sometimes been rather slow. I should be grateful if the noble and learned Lord the Minister could assure the House that it has and will continue to have the resources it needs for the prompt updating on which so many of us depend.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour 4:50 pm, 25th June 2020

My Lords, I thank the noble and learned Lord the Minister for his careful explanation of the Bill. When I sent for it, I was overwhelmed by its sheer volume. I join in its universal welcome. I do so as a criminal law practitioner over a period of 40 to 50 years, and I am humbled by the speeches from distinguished ex-judges.

I remember sitting as a young assistant recorder, dragooned by my former pupil master, Sir Alun Davies QC, to sit as his deputy as a recorder of Cardiff in about 1972. I shall never forget the first case I tried, involving a novel defence in a breathalyser case, having just helped as a junior Minister to pilot the Bill in question through the House of Commons. Breathalyser legislation turned out to be a cottage industry. When I ruled against the defence counsel, I thought it would end my judicial career. It did, but not for that reason: rather, because of my lack of judicial aspiration when set against the delights of politics. Some of the difficulties one had to negotiate when sitting as a judge involved complex sentencing on traffic cases, for example, and changes from time to time in suspended sentences. Frequently, the clerk and even the jailer were more up to speed than the judge himself.

My thanks go to the Law Commission, created by Lord Gardiner under a Labour Government in which I also served very happily as a junior Minister. The striking feature of the briefing for this debate, already mentioned, is the complexity of statutory provisions. The Law Commission, having analysed 260 randomly selected cases before the Court of Appeal Criminal Division, found that 36% of cases had received unlawful sentences. Sir Brian Leveson has underlined the difficulties and struggles of judges in sentencing. I hope the judiciary will be able to navigate sentencing easier when the Bill receives Royal Assent. Equally important, the public and the sentenced will have more confidence in the judicial system.

I particularly welcome the clean-sweep provisions. They are very modest and adhere to and endorse the human rights convention. I hope they will be manageable against that background. They deal only with offences committed in the past, so they will apply only for a period. With those few remarks, I welcome the Bill.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative 4:53 pm, 25th June 2020

My Lords, first I draw attention to my interests as set out in the register.

I warmly welcome this legislation. The principle of consolidation is an excellent one and I am pleasantly struck by the near-universal support for it in this instance. The proposed new code will bring greater clarity, which in turn will assist legal professionals in accurately identifying and applying the law, reducing the risk of error, appeals and unnecessary delays.

The Bill will also enhance access to the sentencing process, and particularly its transparency, for the general public. I was a member of the Constitution Committee, and our report of 25 October 2017 contained a substantial section dealing with consolidation. We had been particularly struck by evidence from the Law Commission which had set out two arguments in favour of consolidation. The first was that

“unlike a Queen’s Printer’s copy, a statute in digital form can be readily updated when the legislation is amended”.

Secondly, statute law is accessible free of charge on the internet, so that a single Act of Parliament containing all the statute law on one subject can be a useful resource that is available to the public as well as to lawyers. We found those arguments persuasive and we recommended that:

“The Government should as a priority provide the Law Commission with the necessary resources to start consolidating those areas of the law where the consistent application of the law is under threat from the sheer complexity of the statute book. The evidence we received indicates that consolidating immigration law and sentencing law in particular would offer real benefits.”

Consolidation may lack the giddy excitement that we associate with so many debates in the House, but it is tremendously valuable to the courts, to those who support the courts and to society in general.

All those of us who have studied law will recall the lengthy and often arid discussions about the nature of laws, what makes a good law and so forth. I have always inclined to the view of the late Sir John Mortimer:

“No brilliance is needed in the law, nothing but common sense and relatively clean fingernails.”

There is no single or simple answer to the question of what makes a good law, but if a complex system is codified and made more readily accessible, that to my mind makes for a better law and a better system of law.

Photo of Lord Addington Lord Addington Liberal Democrat 4:56 pm, 25th June 2020

My Lords, I have to declare a lack of interest in this Bill. I am not a lawyer, nor one of those who has been involved in the changing of sentences, but one thing we can be absolutely sure of is that politicians do like changing them. Over the three decades that I have been here, I have heard numerous discussions in this Chamber about being tough on the law. It is one of the most constant discussions. Something that will simplify and codify the law on sentencing, even if it is a rather knee-jerk reaction—I do not doubt that that is the least important ground for doing it—has to be welcomed. Anything that makes the law easier to understand must also be welcomed.

It is easy for someone to play to the galleries, but there is a principle here which has been brought to my attention. It is Article 7 of the European Convention on Human Rights:

“Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed”.

In other words, do not toughen up the sentence because the law has subsequently been changed. I am sure that the noble and learned Lord, Lord Keen, will be able to explain to me how, under this code, that cannot happen, but there are a few other variables that he could help to clear up as well. It is odd to be talking to an empty Bench, but I am sure that he is listening.

If we are now going to have minimum sentences for certain offences, along with ways of imposing them like second strikes and so on, how is that going to work? It would be very interesting to hear about that. I am sure that many legal minds will be listening and thinking, “Oh, that is covered in such-and-such.” Can I hear the answer so that I can understand it? I am a lay person and I do not have legal training, so if I can understand it, probably just about anyone can. Please can we be helped to understand how this is going to work? If changes are made, will you be unable to go back and say, “We do not think that they should have come out of prison, and that sentence ought to have been changed.” If we are working to the principle that someone is convicted under the law, how is that going to work?

Apart from that—I hope that that explanation will be given—I have no objections to this Bill. Someone referred to the physical size of this legislation. Having walked past it, I can say that it would be quite a feat for anyone to carry a copy into the Chamber, and I doubt if many of us could manage two. There is a lot of paper involved.

Photo of Lord Alderdice Lord Alderdice Deputy Chairman of Committees

I call the noble and learned Lord, Lord Woolf. We do not seem to be able to communicate with him, so I shall call the noble Lord, Lord Adonis.

Photo of Lord Adonis Lord Adonis Labour 5:00 pm, 25th June 2020

My Lords, I cannot think of anybody in the House less fitted to impersonate the noble and learned Lord, Lord Woolf. However, it is my duty to make some remarks. The consensus in favour of the Bill is admirable. It is extremely weighty in terms of the judicial expertise of the House, and therefore I have no hesitation whatever in supporting it. As the Minister said, the law must be accessible and under- standable, and if it is felt not to be sufficiently accessible and understandable by people who have practised the law, that alone is a justification for the Bill.

On the alarming point about the high number of sentences which higher courts find to have been illegal, it is not absolutely clear to me from reading that piece of work how far that is to do with the law being inaccessible and how far it is to do with the misapplication of the law. It looks as if a large proportion of those cases, if not almost all of them, would have occurred even under this legislation. However, it may be that having everything codified in one place will improve things; it is very hard to argue against that principle, and I do not seek to do so.

However, I regard the Bill as a serious wasted opportunity. While the lack of accessibility and codification of sentencing law might be an issue, and I accept that therefore this Bill should proceed, by far the bigger issue in respect of sentencing is the positive content of sentencing law itself, which to my mind is not fit for purpose. We have seen the prison population in Britain treble in the last 40 years—it is now by far the largest in Europe, per capita as well as absolutely. However, longer prison terms, almost all for non-violent offenders, have neither made Britain safer nor reduced crime or the fear of crime. They also stand in very stark and striking contrast to most of the rest of Europe, which has much smaller prison populations, much shorter prison terms, and much more effective alternatives to custodial sentences. It seems that the Bill essentially fiddles while the big issue is unaddressed. We should be seeking to review, modernise and learn from best practice in other civilised countries on the content of sentencing legislation; how it is actually written in the law books is a very secondary consideration.

When we last debated the Bill—as the noble and learned Lord, Lord Judge, said, this is déjà vu all over again—I found myself in striking agreement with the noble Lord, Lord Bates, from the Conservative Benches, on this issue. He made an impassioned speech about the evils of over-long sentences and creating a culture in prisons which is, frankly, deplorable and probably also against the European Convention on Human Rights. The conclusion that we both reached is that the huge judicial expertise which this House contains might be well utilised in a Select Committee to look not just at the codification of sentencing law but at its actual content. Because we are not, I am glad to say, a populist House, we would be capable of bringing our expertise to bear on this issue and we might then get a genuinely worthwhile reform, which would correct the move towards ever-longer sentences and an ever-larger prison population, and in consequence towards what I regard as a much less civilised society.

Photo of Lord Garnier Lord Garnier Conservative 5:03 pm, 25th June 2020

My Lords, I begin by referring to my registered interest as a practising member of the Bar and a trustee of the Prison Reform Trust. I also note that over the last few decades, criminal justice Bills have become more frequent, more complex and longer. Sadly, their frequency and greater length have not always been helpful in clarifying the law. The noble and learned Lord, Lord Judge, offered a stark example from his long experience as a senior judge, and the noble Lord, Lord Blunkett, was refreshingly candid about his time as Home Secretary. All these statutes have neither helped to reduce crime nor made the work of the police, prosecutors, defence lawyers or judges any easier.

Many provisions of these Bills—or Acts of Parliament, as they now are—have been repealed by later legislation before coming into force; some have yet to be implemented, despite being part of a statute for years; some created offences that already existed; and, as far as sentencing statutes are concerned, most of them achieved little except to make the work of sentencing judges and magistrates far more difficult than it needs to be—I speak from bitter experience as a former Crown Court recorder.

It is shocking but true that some sentences passed by magistrates and judges have been unlawful and that even the Court of Appeal has on occasion got the law on sentencing wrong because it is more difficult to unravel than a tangled ball of thread. As I have often pointed out with impertinent glee, in 2012, an analysis of 262 randomly selected cases in the Court of Appeal Criminal Division found that, in 36% of them, unlawful sentences were handed down. The Law Commission attributed this to the level of complexity in the existing legislation—I heard the question just now from the noble Lord, Lord Adonis, on this.

Now we have this new Sentencing Bill. It was preceded by the Sentencing (Pre-consolidation Amendments) Act, which a number of us debated both before and after the December 2019 general election. In line with modern practice, the Sentencing Bill is vast. The table of contents alone is 24 pages long. The Bill itself contains 420 clauses, 29 schedules and covers 569 pages in two volumes. But, rather than causing me despair, this Bill is to be welcomed. It is the result of years of hard work by Professor David Ormerod and his colleagues at the Law Commission, who deserve our heartfelt congratulations and thanks—and a holiday.

Through this Bill, we are at last to have a sentencing code: one place in which the law on sentencing procedure and types of custodial and community sentence is brought together. It makes sense. It is comprehensive and comprehendable. Once this Bill is in force, everyone will be able to see clearly what Parliament means and what sentencing is for and, in particular, will have a better understanding of that most complicated area of sentencing: non-custodial sentencing.

Let us get this Bill enacted as quickly as possible, before anyone in No. 10 Downing Street or the Home Office notices and tries to fiddle with it.

Photo of Baroness Bowles of Berkhamsted Baroness Bowles of Berkhamsted Liberal Democrat 5:07 pm, 25th June 2020

My Lords, I will speak about consolidation rather than the detail of sentencing, although I am glad that this project is reaching a conclusion.

Sentencing is a discrete and most serious matter. The fact that the law surrounding it was so amended and reamended that even the most senior lawyers in the land had difficulty knowing what it was with accuracy surely had to be addressed. With 1,500 pages of sentencing law spread across many instruments, the Law Commission said that sentencing lacked transparency due to complexity; regrettably, that is the state of many of our laws.

For some subjects, 1,500 pages is short. When we started scrutinising Brexit regulations, the Financial Services and Markets Act had far more pages than that. The Treasury admitted that it could not send us an up-to-date copy as it did not have one and did not know everything that was in it. When researching my response to the corporate governance Green Paper in 2016, I asked the Library for a print of the up-to-date Companies Act 2006. It used a commercial site as the GOV.UK pages were not up to date, then telephoned to ask if I could accommodate a pallet-load of paper in my office. Both those Acts contain criminal offences and neither is all that old, in the scale of things.

With Brexit, we have hundreds more multiple, nested regulations. As we have trade talks and decisions about equivalence of laws, can we be sure that we know what our laws are? Can anyone else be sure? The EU always mistrusted how we had complied, and Brexit transpositions have exposed various mistakes and left-out bits. It has taken five years for the sentencing consolidation to get to this final stage. With that overhead, I am beginning to understand why every statutory instrument says that the Government have no plans to consolidate law—but is that really a satisfactory answer?

Finally, I welcome the updating provisions and the table of origins, but when I was looking for things in my usual subject areas, I did not find listed all the abbreviations for legislation that were used in the subsequent table. For example, abbreviations for the Financial Services Act, the Bank of England and financial services regulations, the Secretaries of State for BEIS order or the crime and courts commencement order did not show when I searched the table.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench 5:10 pm, 25th June 2020

My Lords, in a month I shall have been a member of the Bar for 50 years, and I have included in that time sitting as a judge in criminal courts. In that time, the population of the prisons has more than doubled and the complexity of sentencing law has at least quadrupled, and I deprecate both. However, I support this Bill with enthusiasm, because it puts sentencing law in one place—as part of a living instrument, I hope. It is very important that the Bill should be brought into force as quickly as possible and I ask the Minister to confirm that this will occur by 1 October, so that there can be co-ordination between the Bill coming into force, new criminal procedure rule documents and new practice directions. Co-ordination really is required.

The Bill is a creature of the Law Commission, which I wish to praise and say that we use it far less than we should. That has been the situation throughout my political and legal life. I join those who praise particularly the extraordinary work done by Professor David Ormerod QC. What is most remarkable, apart from the output of his work, is that he is still only in mid-career: he has a huge amount to offer yet to come and we owe a great debt to his determination, as a member of the Law Commission when it was put under quite unacceptable financial attrition of its resources.

My noble friend Lady Deech, who is a non-executive director of the Law Commission, is unable to be with us this afternoon, but she has asked me to pass on to your Lordships her support for the Bill and the extraordinary work that has been done by the Law Commission and of course by parliamentary counsel. My essential message is that I hope the Bill will be treated as a true code, updated day by day as if it were a loose-leaf volume or a digital encyclopaedia. If it is dealt with as a living instrument, the courts will be more accurate, defendants will know what faces them, and their lawyers—this will be very welcome among my learned friends—will make far fewer mistakes.

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour 5:13 pm, 25th June 2020

My Lords, five years ago, the review I conducted for the then Minister for Prisons into the self-inflicted deaths of 87 young prisoners was published. I want to use—perhaps some will say abuse or certainly misuse—the opportunity of this debate to raise some general issues about the role of prison. A core conclusion of my review was that prisons are grim environments, bleak and demoralising to the spirit.

So what are the purposes of prison? The first is clearly public protection. A criminal cannot, it is argued, pursue their criminal activities from a prison cell and they cannot endanger other people. Another is to punish, and that punishment is the deprivation of liberty. It is assumed that such punishment will have a deterrent effect. The third is to enable a prisoner to be rehabilitated, given an education or training previously missed, so enabling them to become a useful citizen on release. There is probably also a final purpose in assuaging public opinion that something must be done. This last has led, over the years, to a growing prison population facing longer sentences.

Does it work? Public protection is not achieved if gang leaders can still control and run their criminal activities from inside their prison cell. Public protection is not delivered if prisoners, once released, emerge so embittered by their experience that they are even more dangerous than when they went in; if they have been radicalised by their exposure to violent extremist ideology; or, indeed, if they have used their time inside to make a whole series of new criminal contacts and acquire or hone their criminal skills to make them more effective criminals on their release.

What is the evidence that deterrence works, particularly for young men? Brain development studies show that many young men are not able to evaluate the consequences of their actions and to limit their impulsivity until their mid-20s.

Finally, what about rehabilitation? The prison experience is hardly conducive to it and it is exacerbated by staff shortages, meaning that many courses and classes cannot take place, even before the lockdown imposed by Covid-19. Most prisoners are not sufficiently engaged in purposeful activity and even medical and mental health appointments are being missed because there are insufficient escort staff. Prisons have to be substantially better resourced if they are to deliver any meaningful form of rehabilitation or even protect public safety.

Why do so many prisoners come into contact with the criminal justice system in the first place? Many of the prisoners whose cases I reviewed had problems that were evident from an early age. Many had mental health issues and a troubled adolescence. Why were they not successfully diverted away from criminal activity at a much earlier stage? Proper investment in the health and welfare system is needed to resolve the issues that create these problems of a troubled child or adolescent long before they ever enter the criminal justice system, and we need effective alternatives to custody if they get into trouble. That would be money well spent and would reduce the numbers in prison so that those there can have better rehabilitative support.

There will always be a need for prisons and a coherent, fair sentencing framework is a necessity, but for too long we have neglected what we should do to avoid people getting into trouble in the first place; and we have certainly failed to invest in the prison system sufficiently to ensure that prisons keep the public safe and rehabilitate prisoners so that when they are released they can play a proper part in society. My question to the Minister is: when and how will we address those issues?

Photo of Baroness Sater Baroness Sater Conservative 5:16 pm, 25th June 2020

My Lords, I declare that I have sat in the youth court for more than 20 years. I warmly welcome this Bill. It would introduce one coherent Sentencing Code. I join other noble Lords in paying tribute to the assiduous work of the Law Commission and note that it has received widespread support from judges, lawyers and academics, as well as the other place.

I particularly welcome the introduction of the clean sweep. It brings much-needed clarity to the application of sentencing law, deleting layers of historic sentencing legislation and making it possible for offenders to be sentenced under the new code, regardless of when an offence was committed. It is a significant step that will help avoid errors and appeals resulting from historic or redundant aspects of the legislation being incorrectly reflected in sentencing decisions.

The Bill makes important steps to simplify criminal sentencing, not only for the judiciary and legal practitioners—crucially, it also improves the clarity, accessibility and understanding of the law to defendants, witnesses, jurors, victims and the public at large. Once the Sentencing Code is enacted, I ask the Minister to do all he can to ensure that the training measures are in place, so that the judiciary who use it are able to do so to best effect and that it is applied correctly and appropriately.

I am pleased that in his remarks in the other place the Lord Chancellor focused on defendants. They are at the sharp end when it comes to sentencing and we should not lose sight of the fact that these matters affect the lives of real people. The Bill will improve the confidence that all users of the criminal justice system need in sentencing, including the public, defendants and victims. Clearer law will lead to greater understanding. I agree with the Lord Chancellor and others that for far too long there has been a gulf between what the practitioner and the lawyer might understand and how it is explained to the public.

The passing of correct sentencing is crucial, based on the right legislation and procedure, which will bring increased public confidence. The coherent Sentencing Code that will be enacted through this Bill is therefore not only desirable but utterly essential and long overdue.

Photo of Baroness Wilcox of Newport Baroness Wilcox of Newport Opposition Whip (Lords) 5:19 pm, 25th June 2020

My Lords, we have heard already that when passing sentence the sentencing judge must consider the sentencing law applicable at the time of the offence, and that the many pieces of legislation passed by Parliament over the years have added to the complexity of sentencing. We are in extremely difficult times, notwithstanding the pandemic that has altered things inexorably in our society. The Government have many demand-led issues to deal with as result, including the effects that these matters will have on the cases in the system, which I believe was in a huge backlog, with more than 1 million cases before the pandemic arrived, disrupting so much in the everyday running of our society and our public services.

However, this issue has gone on for far too long, and wrong sentencing decisions have been very evident in reviews of the justice system. Reading them suggests that as much as 36% of sentencing has been wrongly attributed. Let us not forget that a huge court closure programme—especially in my own area, south Wales—and the lack of interpreters in court proceedings, have added to these delays. A clear way forward must now be established, so that the public can have faith in a system of sentencing and those sentenced given a fair judgment.

It will be like peeling back the layers of an onion, as historical legislation will be removed and streamlined for lawyers, judges and magistrates to use. It will serve the public to build a confidence in the system, and those at the sharp end, too. Fairness must be seen to be done for the victims of crime as well as those who have offended.

Clear and accessible language will be a feature of this code. All too often the impenetrable language of the law has served a legal system comprehensible only to the learned few. I look forward to a completely revised system that makes the law accessible. This is an essential aspect that will help to explain it to the public. It may be a pathfinder for future legislation; clearly explained legislation that can be understood on a wider level may help to engage the public in the business of the law and of politics.

My introduction to your Lordships’ House was marked by some indecipherable language when learning the business of the House, and I like to think that I have a good understanding of language and literacy, having taught English for many years in high schools and being educated to higher degree level. If there are lessons to be learned from the delays in dealing with the Sentencing Code, I urge the Minister to inform his colleagues that the wait was well worth it because the language is now less complex and easier to understand, and other government departments may well follow this lead in developing their future legislation.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Judge 5:22 pm, 25th June 2020

In warmly welcoming the Bill, I pay tribute to the Law Commission for its outstanding achievement, particularly to Professor David Ormerod, whose scholarship, knowledge of criminal law, patience and persistence with this project has ensured that it has come to fruition—and to almost universal approval. In large part, that is due to the time taken on consultation in a most courteous and patient way.

There can be no doubt that the Bill is needed. The reason that there have been mistakes—I need not go over the number of them—is that the law was inaccessible. Only by collecting former editions of textbooks or having the resources of the Criminal Appeal Office could you have untangled the mess the law had got into through successive changes in sentencing policy. Obviously, the Joint Committee on Consolidation Bills will take the necessary evidence in relation to this.

Perhaps I can answer the question of why there are no Explanatory Notes. In looking at previous consolidations, I saw that this was raised by the noble Viscount, Lord Hanworth, in 2014. It was pointed out that it might be useful and could be considered in the next consolidation. For my part, I would not ask for Explanatory Notes on this Bill; it would impose an enormous burden on the Office of the Parliamentary Counsel, and the Bill is explicable without them.

My final remarks are for the future. The experience is not good. We ought to be very much aware of that. The Powers of Criminal Courts (Sentencing) Act 2000 was meant to consolidate a large area of sentencing law. However, within a year or so of that Bill passing, legislation came forward that made it redundant. Please can we bear that in mind for the future?

I have a note of optimism: the Bill shortly to be considered in relation to terrorist sentences contains drafting which shows that it is possible to do all this with the amendment to this code. I also hope that in future the Law Commission can be provided with the resources to carry on this valuable work. The judiciary has modernised criminal procedure and it is now in effect in the procedural code, and there are other aspects of the criminal law, particularly substantive criminal law, which could well benefit from codification, but that may be to dream too far.

Photo of Lord Randall of Uxbridge Lord Randall of Uxbridge Conservative 5:25 pm, 25th June 2020

My Lords, I speak with a great deal of trepidation in supporting this Bill, not because I have any doubts about its merits but because it seems a highly specialised Bill and this Chamber is blessed with some of the finest legal minds in the country, many of whom we have heard from already. I welcome anything that simplifies sentencing and will give increased public confidence in our criminal justice system. I have just a few queries for the Minister, which will show up my inability to understand the Bill rather than any flaws in the Bill itself.

When new legislation comes into force in future, with new offences and sentences, will this Bill need to be amended? For example, when the much delayed and keenly anticipated Bill to increase sentences for animal cruelty finally becomes law, will it be possible for the disqualifications in Part 8 to be included? Similarly, if at a future date those convicted of firearms offences would be automatically disqualified from holding a firearms licence, would that need to be included?

I apologise to my noble and learned friend for my layman’s ignorance on this matter. On another, more suitable occasion, I would welcome the opportunity to discuss the matters raised by the noble Lord, Lord Adonis, as, for once, I find myself in agreement with many of his views. I thoroughly welcome the Bill.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green 5:26 pm, 25th June 2020

My Lords, in welcoming this Bill, I am guided by the expert voices in your Lordships’ House, particularly those from the Cross Benches. As a relatively new Member of your Lordships’ House, I am well aware of the challenge of coming to terms with the detail and complexity of the fine points of law and lawmaking.

I particularly want to reflect on the words of the noble and learned Lord, Lord Judge. He referred to the legislative morass in which this Bill is trying to find some clarity. That legislative morass is not a technical issue but very much a political one, and one on which I hope I can make some useful comments. I go back to the words of the Prison Reform Trust before the 2019 election. It called on party leaders to temper their language with regard to law and order so that sensitive issues of intense public concern were not exploited but were used to contribute to a reasonable and constructive public debate. Far too often, that is not what has happened around law and order issues. Very often we have seen politicians—certainly from the largest parties—competing to appear tough on crime, perhaps with “tough on the causes of crime” added as an afterthought. There have been easy responses to awful events: the creation of a new offence or a knee-jerk promise to increase penalties. Often this is deeply confusing as well as deeply destructive.

I associate myself with the remarks of the noble Lord, Lord Harris of Haringey, about the evidence, particularly that around young men and how they are not necessarily in a position to react appropriately and should be managed differently. The fact is that our prison population has quadrupled in the past century, and half that increase has been since 1990. We have the highest rate of imprisonment in western Europe. I do not believe there is any doubt at all that that makes our society worse, for all its members and all its futures.

I particularly want to take a short moment to focus on the work of a Member of your Lordships’ House, the noble Baroness, Lady Corston, who in 2007 wrote an internationally renowned report on women prisoners. It acknowledged that women prisoners are objectively different as a population. The majority are victims of domestic abuse, 48% committed their offence in relation to someone else’s drug use, half have drug issues themselves and 25% have a problem with alcohol. Then there are the non-offending victims: only 5% of children remain in the family home when their mothers are sent to prison. So there is no doubt that we need sentences to be clear and transparent, but we also need them to be humane.

Photo of Lord McConnell of Glenscorrodale Lord McConnell of Glenscorrodale Labour 5:30 pm, 25th June 2020

My Lords, I add my congratulations to everyone who has been involved over many years in all the work that has led to the Bill that we are debating today. I particularly associate myself with the remarks of the noble and learned Lord, Lord Hope of Craighead. From his experience, particularly of the 1995 Act in Scotland, he has a particularly relevant contribution to make regarding the importance of this legislation and the way in which it has been constructed.

When I was First Minister of Scotland, I was involved, like my noble friend Lord Blunkett, in a number of political debates that led to legislative change that affected sentencing. That is always going to take place. Sometimes politicians will get those decisions right and sometimes they will get them wrong but there will always be political debates about sentencing. Part of that will always be about sending signals to victims or potential offenders about the importance of various forms of sentence, although I agree entirely with what the noble Baroness, Lady Bennett, just said about the importance of getting sentences right.

I think that in Scotland the existence of the 1995 Act and the sentencing code gave those involved in the drafting of legislation and the implementation of new sentences a backdrop against which to ensure that the decisions being made by the new Scottish Parliament were accessible and able to be implemented successfully by the judiciary. So I endorse entirely the points made by the noble and learned Lord, Lord Hope, and I certainly fully support the Bill.

I want to ask one question of the Minister. It is implied in the Bill, and in all the contributions that have been made today, that because the Bill is a consolidation it in no way changes the devolution settlement or affects the legislative competence of the Scottish Parliament and the Scottish Government in relation to civil and criminal law, but it would be helpful if that were stated. There are no supporting documents for the Bill, it is not stated anywhere in the documents that are available to us and it was certainly not in the Library briefing that we received earlier this week. If the Minister could just put it on the record, that would be helpful for all concerned.

With that one caveat, I enthusiastically support the Bill and congratulate all who have been involved in its drafting.

Photo of Lord Trimble Lord Trimble Conservative 5:33 pm, 25th June 2020

My Lords, I have to start by apologising that I am not going to discuss the Bill before us, for very obvious reasons. Instead, I will use this occasion to draw attention to a discussion that seems to be going on at the moment about whether we should have more cases dealt with by judges sitting by themselves rather than by juries. I see that this discussion—I have not been following it very closely; it is just beginning to impinge upon my mind—is doing the usual thing: it is ignoring the fact that there is a lot of knowledge and experience on this subject in Northern Ireland, and that is not being reflected in the discussion that is taking place. If you are going to move to a situation of judge-only courts, you have to look at the safeguards that were put into what we called the Diplock courts in Northern Ireland, and that is a large part of the reason for the success of those.

I point to what, as I say, is the success of the Diplock courts by referring to one particular case: that of the Brighton bomber, who was eventually found, tried and convicted. His defence counsel was Dick Ferguson, who I knew well. Dick told me that when he went down to speak to the Brighton bomber afterwards, he found a very disgruntled man, who said, “Mr Ferguson, I would never have been convicted on that evidence in a Diplock court in Belfast.” The gentleman was of course a leading member of the IRA, and it is interesting to see how the republican movement has never launched any attack on the concept of the Diplock courts because its members know from experience that it works well. It may not be appropriate when we are thinking about situations here, but I say that you should look at the experience there before you come to a conclusion about whether you are going to increase the number of cases that are heard only by judges. To go ahead without looking at the experience in Northern Ireland would be foolish.

Photo of Baroness Kennedy of Cradley Baroness Kennedy of Cradley Labour 5:35 pm, 25th June 2020

My Lords, first, I join other noble Lords in putting on record my thanks to the Law Commission and the many others who have participated in the consultation and outreach work, for all they have done to deliver this Sentencing Bill. I agree with their comments and many others made by noble Lords with regard to sentencing. Having laws spread over multiple pieces of legislation has made our processes complex, inefficient and lacking in transparency, and has clearly led to errors in justice.

I therefore welcome this Bill. The Single Sentencing code should go a long way to increasing public confidence in the sentencing process, and should make it easier, quicker and more transparent. I believe, as I have said in this House before, that the public want transparency and accountability in our criminal justice system. So, measures like this, which seek to provide greater clarity and make our sentencing procedures more easily understood, are welcome progress. As other noble Lords have said, I too was concerned to note the research referenced in the Law Commission report, which found that sentences in 36% of its sample cases were unlawful; this is unacceptable and a truly shocking figure.

If this snapshot is representative of the level of incorrect sentencing that has been going on, there must be many more wrongly decided cases out there. Can the Minister tell us what action the Government have taken in this regard since the research was done in 2012? Have the Government made their own estimate of the level of unlawful sentences, or reviewed cases in the Law Commission sample to identify errors, learn from them, take action and, maybe, amend the sentences guidelines accordingly? Do the Government expect that the Sentencing Code will solve the issue of unlawful sentences once and for all?

Finally, I particularly welcome the clean sweep provision but can the Minister clarify how the listed exceptions in any future legislation will be dealt with, without adding back in the layers of complexity that this Bill seeks to remove? I end by saying that this Bill ensures clarity and transparency and improves the service provided to the public, in terms that build their confidence in the sentencing process. It is, therefore, a welcome step.

Photo of Lord Balfe Lord Balfe Conservative 5:38 pm, 25th June 2020

My Lords, I would like to make three points. First, we have heard it reflected many times in this debate that, in the survey, 36% of the sentences were found to be unlawful. What has not been said, unless I have missed it, is how many of that 36% were under-sentenced and how many over-sentenced; in other words, how many people should have been let out, and how many were not given the right sentence and should have been there for longer? But the question that arises, for me, is: what about the rest? Will there be a review of all the sentences to see whether people have been sentenced correctly? If not, will it be open to prisoners to have their own sentences reviewed? The figure of 36% is very high. We cannot just pass on and say, “It will all be all right when we get this new Bill on the statute book.” People will still be in prison. So, my first question to the Minister is: will all sentences now be reviewed in the light of the discovery of this sample?

My second point is that any future changes in sentencing must be made by changing the terms of the Sentencing Code, and not in a new document. If it becomes a new document, the whole thing will start to fall to pieces. I would like the agreement of the Minister to the effect that this will be the template for the future, and there will not be new sentences added on.

The third thing to which I draw the House’s attention is that, as we all know, whenever anything goes wrong there is a great tendency to reach for a press release and demand a tougher sentence. I noticed that, when the statue of Winston Churchill in Parliament Square was quite disgracefully daubed, instead of the correct response—saying that prosecution should be made under the law as it exists, because it was an offence—there was an immediate call for a minimum 10-year sentence for defacing a statue. Frankly, that is quite ridiculous and out of proportion. I ask that we are careful not to carry on passing sentences for offences that already exist. There is a tendency to say that we will have a sentence for this or that, without acknowledging that the matters under consideration are already offences.

As the noble Lord, Lord Harris, and a couple of others have mentioned, we have a huge and growing prison population. When I was first in the European Parliament, Turkey was well ahead of Great Britain in the number of people that it had in prison. At the end of Mrs Thatcher’s premiership, there were 40,000 people in British prisons—slightly fewer than in Turkish prisons. Today, the total is projected to grow to 85,800 by 2022 and is still heading up. I am told that the 100,000 mark will be reached around 2030.

I am not against prison sentences. In any society you need prisons and to sentence people to prison, but you also need to make prisons places that people do not want to go back to. I suspect that, in many cases, people are so hopelessly damaged when they come out of prison that they drift back into reoffending. I acknowledge that this is not part of this Bill, but in the context of our criminal justice system we need to look at a proper way of building rehabilitation and retraining into our system.

Photo of Lord Woolf Lord Woolf Crossbench 5:42 pm, 25th June 2020

I am grateful to your Lordships for allowing me a second opportunity to contribute to this debate, and I apologise for the delay I caused. I thank most warmly the noble Lord, Lord Adonis, for stepping into the breach. I can perhaps give him the reassurance that, at the present time when hairdressing is not readily available, there is no risk of my being mistaken for him.

The Law Commission is a body that is not loved as much as it should be. However, from time to time—as is the case at the moment—its work reaches the surface and you are reminded, as we have been, just how valuable its role is in our justice system. The Sentencing Bill is a classic example of what a Law Commission such as our own can achieve. I congratulate all who were involved in this Bill on the excellent work they have done.

To state the obvious, the criminal law needs to be as clear as possible. This is particularly true of sentencing; it is also true of substantive law. Justice requires no less. In relation to the law governing sentencing, because of the process of amendment, reamendment and re-reamendment, at times it has become almost impossible to determine what sentence the judge can, should or even must impose. This situation is not fair on the public, the accused, the legal profession or the judiciary, and should not have been allowed to persist for so long.

The situation needed to be tackled, and we are fortunate that this is what the Law Commission has done admirably. It has been a long process of getting to this stage—too long. We have heard reference to the fact that this process started in 2014. I applaud the admirable research paper that we have had from the Library to help us to deal with matters today. It draws attention to the figure that we have heard, which is indeed shocking, of 36% unlawful sentences. Complexity was certainly part of the cause of this.

The Bill should certainly continue to progress and to be welcomed on all sides. I am pleased that no one has felt that it could be improved by tinkering. I especially welcome the clean sweep. I certainly do not think that the Bill’s 420 clauses need to increase. The fact remains that legislation on this subject should not have been allowed to get into the chaotic position that has arisen. Justice is too important to allow this to happen.

A contributing factor is for politicians to recognise that, in the field of justice, it is sensible not to announce alterations to the sentencing agenda off the cuff without proper consideration or deliberation. Frequently, they are wholly unnecessary because the maximum sentence is totally sufficient to cover any foreseeable situation in which to decide the right sentence. I would go further and say that it is much better that matters of detail are left to the sentencer’s discretion rather than trying to anticipate the different situations that can arise. I agree with much that has been said in this debate, particularly by noble and learned Lords.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 5:47 pm, 25th June 2020

My Lords, I congratulate David Ormerod, parliamentary counsel and the Law Commission for the production of this outstanding work. The heart of it is Part 4, which deals with the exercise of judicial discretion. The noble Lord, Lord Balfe, has reminded me of a particular judge I remember from the good old days, who almost as a matter of principle used to pass sentences beyond the maximum. He did so because he had been a miner in his youth—a Bevin boy—before he went to Oxford. He regarded anybody who attacked or preyed upon their community as someone who deserved condign punishment, so he would sentence them to whatever sentence of imprisonment he thought appropriate. It was quite admirable, really, but the Court of Appeal had to spend a whole day dealing with the sentences that he had inflicted.

The issues that, to my mind, are very important are contained in Clause 57, which deals with the discretion of the judge. The tramlines have been laid down for some years by the sentencing guidelines and, of course, the method of sentencing—the formula—which is that you take the sentencing guidelines and add to it if there are aggravating features and reduce it if there are mitigating features. That is well known, but it can be rather formulaic. The Bill states that those tramlines must be followed unless it is in the interests of justice that it should be otherwise.

Many years ago, I prosecuted a lady who had put a hammer through the skull of her husband and dragged his body into the back room of the basement flat in which they lived. There the body lay for some 20 years until a neighbour from upstairs was taking up his floor and discovered the skeleton. The case went to court and I remember that the lady concerned pleaded guilty to manslaughter on the grounds of provocation. The learned judge said to her that he could not imagine the agony that she must have gone through in living with that body behind the curtain, and bringing up her children, over so many years. He said, “I am not sending you to prison. I am not going to impose probation; that would be ridiculous. I am not going to give you a conditional sentence just in case you were inclined to commit a similar offence within the next two years. That would be absurd. I am going to give you an absolute discharge.” That is exactly what he did. That very experienced High Court judge was reacting as a human being to the situation as he saw it—the circumstances in which this lady had lived. Consequently, he passed that sentence with great humanity and I applaud him for it.

It is good that the power of giving an absolute discharge has been maintained in Clause 79. It states that an absolute discharge should be given only if the judge finds it wrong to pass a sentence of imprisonment upon a defendant. The wording used suggests that the power should be used only where a person is terminally ill, or something of that sort. That is not entirely the right approach. That sentence should be available to the judge in the exercise of their proper discretion, as the judge to whom I referred exercised his—as a human being, as much as a judge.

As the noble Lord, Lord Blunkett, pointed out, there has been a proliferation of sentence disposals since 2000. There have been all sorts of orders: withdrawal orders, reparation orders, financial punishments and so on. They have become a morass in the past 20 years and it is good that it is about to be disposed of. A judge today will have before him a code, through the Bill, that he can exercise with discretion and justice. I am sure that all will profit as a result. I fully commend the Bill and hope that it passes all its stages without problems.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Attorney General 5:54 pm, 25th June 2020

Like every other speaker I voice my support for the Bill, on behalf of the Opposition. Like so many others, I pay tribute to David Ormerod and the Law Commission. This truly is the product of huge amounts of hard work and should be admired. We should pass the Bill, which is intended to—and does, as far as I am aware—bring all those disparate sentencing provisions spread out over 1,300 pages of different statutes into one place.

When the Bill passes, it could be an important legislative day, or it could go the way of all previous attempts to consolidate sentences. If what David Ormerod and this House want were to happen, the Bill, when it becomes an Act, will be a comprehensive code for what a sentencing court does after October 2020, in respect of anybody convicted after that date. It will need only to look at the Act to know the procedure, limits and powers that it has.

The problems identified previously—the problems that led to that quite small but very telling survey in 2012, which indicated that 36% of sentences were unlawful—mean that judges, quite legitimately, and often assisted by counsel who find the same difficulties as the judge, do not know which sentence has been brought into force, what the maximum for one sentence was or what powers were available, depending on the date when an offence had been committed. That led to the inaccessibility of the sentencing regime, the terrifying lack of accuracy that has occurred in sentencing and—although I do not think it has led to much public awareness of this, wrongly—a reduction in public confidence in whether the sentencing regime works.

The Bill seeks, rightly, to remedy all the problems with that lack of certainty and those difficulties. It will save money over time: the estimate is hundreds of millions of pounds. It will make it easier for judges and defendants to know what the likely sentence will be, and it will increase public confidence. I commend it, for all those reasons.

I note what my noble friend Lord Adonis says: that this is fiddling while Rome burns. Yes, there can be a lot of debate about whether we have the right sentencing framework, but that should not prevent us making whatever legal framework we have accessible and understandable. I also note what my noble friend Lord Harris of Haringey says. Yes, there are real problems in how our prisons are currently managed but, again, that is not a reason for leaving the law on sentencing in the state that it is.

I note what the noble Lord, Lord Trimble, said about whether one should abandon juries in certain specified circumstances where they are presently available. I am strongly against the abandonment of the jury system in England because of the emergency. That would lead victims to feel that if there were acquittals, it was because there was emergency justice, and lead those defendants who were convicted to feel that it was because they ended up in a situation where they had emergency justice. The Ministry of Justice should focus on ensuring that there are enough courts to deal with jury trials, rather than amending our basic system. I say in parenthesis how strongly I agree with the noble Lord, Lord Trimble, about the merit and wonder of Dick Ferguson as an advocate. He was one of the finest advocates of his generation. The noble Lord described the circumstances in which Dick Ferguson, a former unionist member of Stormont, as it was then called, defended a member of the IRA charged with the Brighton bombing.

Coming back to the Bill, I join all your Lordships in supporting it. I also join those of your Lordships who say that it will work only if future Governments change sentencing only by amending this code, and not by introducing new Acts of Parliament. Home Offices and Home Secretaries can be as incontinent as they like in relation to justice Bills and new sentences. If they make the changes to sentencing by amending this Bill when it becomes an Act of Parliament, the “one code” approach will remain. Only if they do that will the Bill, and its passage into an Act, turn out to be an historic occasion. I very much hope that it will.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice) 5:59 pm, 25th June 2020

My Lords, I thank all noble Lords, and noble and learned Lords, for their contributions. I reiterate my thanks to the Law Commission, and in particular to Professor David Ormerod and parliamentary counsel, for producing this consolidating measure—one that we all recognise is of supreme importance in this context.

Going forward, I acknowledge the importance of Parliament, when looking at matters of sentencing, being conscious of the need to mend the Sentencing Code and not derogate from it. Of course, we cannot bind future Parliaments, but we can make it clear today that we consider that that is the only appropriate way forward in dealing with further changes to sentencing.

I will touch briefly on a procedural matter raised by the noble Lord, Lord Campbell of Pittenweem, and touched on by the noble and learned Lord, Lord Thomas of Cwmgiedd. My understanding is that, because this is a consolidation measure, parliamentary practice does not require or direct the preparation of Explanatory Notes, the explanation being that it is a consolidation of the existing law. It may be a point of practice that will be looked at again in the future, but that is why there are no Explanatory Notes.

I will touch on some of the issues raised by noble Lords. The noble Lord, Lord Blunkett, raised the matter of IPP prisoners and prison sentences. I should point out that the Bill does not cover release, which is dealt with by Part 6 of the Criminal Justice Act 2003. Release and recall provisions for IPP prisoners remain as they were before.

The noble Lord also raised the matter of training, as did the noble Baroness, Lady Sater. Of course, we appreciate how critical that will be, and we appreciate that the Judicial College will take on that role with regard to the judiciary. We have heard no expressions of concern about its ability to do so, which may very well reflect the skill with which the Law Commission and parliamentary counsel produced such a formidable Sentencing Code in language of such clarity. Of course, the training will go beyond that of the judiciary and will be required of the legal profession in general.

A number of noble Lords quite rightly mentioned illegal sentences. We have to see the results of the relevant sample in context. What was being looked at were sentences that had been challenged as being either excessive or unlawful and which had therefore been brought to the Court of Appeal Criminal Division to be dealt with. Of course, it is an unusually high proportion of the work before the Court of Appeal, but these sentences were the subject of appeal and were being disposed of—and were the subject of appeal because an error in sentencing had been identified. So I suggest that one should not conflate that with the notion that 36% of all criminal sentences handed down by the judiciary are liable to be illegal. That would not be an appropriate inference to draw. But the matter of illegal sentences underlines what I would term the time-layered complexity of sentencing law, as it is built up over many years. That is what Professor David Ormerod addressed with the extremely astute use of what is termed the “clean sweep” mechanism and with the development of the Sentencing Code itself.

The noble Lord, Lord Carlile of Berriew, asked about the Bill’s commencement. We would like to see it commence as soon as possible, of course, and we continue to aim for 1 October 2020. The legislative programme has been under strain, for reasons that are all too apparent to noble Lords and noble and learned Lords, but at the moment we continue to aim for that date and we understand its importance.

On some of the other points that were raised, the noble Lord, Lord Addington, asked how the clean sweep would apply to someone who committed an offence before the Sentencing Code came into place. Safeguards there ensure that, if an individual would be subject to a sentence under the code which is greater than the maximum that would have been available at the time he committed his offence, that maximum at the time he committed the offence will be applicable and he will not be subject to the sentence in the code. I hope that that gives the noble Lord some comfort. Indeed, if someone who committed an offence before the Sentencing Code came into force would be liable to a minimum sentence that did not apply at the time he committed the offence, again, that minimum sentence would not be applied to him. That is part of the process that is being brought in, albeit it will be transitory because eventually we will move away from dealing with offences which were committed before the code came into place.

The noble Lord, Lord McConnell of Glenscorrodale, raised the question of devolved competence. The Bill does not extend to Scotland, because of course sentencing policy is a devolved competence, and it does not impinge upon devolved competence. A number of matters are dealt with in the code which simply address the transfer to Scotland of community orders and suspended sentence orders, and that is all. However, it does not impinge upon devolved competence as such.

My noble friend Lord Balfe alluded to the question of reviewing all sentences. We do not contemplate doing that and, as I hope I explained earlier, one should not take the sample of 2012 out of context. It is important to understand just how that came about.

Finally, a number of noble Lords—the noble Lords, Lord Adonis, Lord Harris and Lord Trimble—alluded to matters that are essentially outwith the scope of this consolidating measure. I hear what they say, and no doubt Parliament will wish to take account of the concerns that they expressed with regard to both sentencing policy and the whole issue of imprisonment. However, that is a matter for another day.

I hope that I have dealt with the specific questions raised by noble Lords. Again, I am grateful for the support that is being expressed across the House for this consolidating measure.

Bill read a second time.