My Lords, I want to start on the Sentencing Council and I want to say how sad and unfortunate it is that we have lost the Lord Justice Sir William Davis, who sadly died on 7 June. I believe that William Davis was a very fine public servant and, if anybody wants to assess what might be thought about him and his legacy, they should read his five-page letter of 27 March, written to the Lord Chancellor, which sets out the Sentencing Council’s position in relation to the demands which were at that time being made by the Lord Chancellor. It is not any part of my intention to go into the details of that disagreement; I will simply say both how sad it is and what an unfortunate loss it is that Sir William is no longer with us.

In talking about the Sentencing Council, I must say that I admire both the council and the scheme that was set up in the Act of 2009, and the work which has been done subsequent to the setting up of that scheme. I think the Council has done a fine job in its 15-year history. I will not go into my reasons for saying that, because your Lordships need only to read the speech from the noble and learned Lord, Lord Burnett, in order to have a full description of why. But I will go on to say that, in the opening speeches, the Minister seemed to be making some sort of move from what I have identified as a sort of panic stations response of the Government to the circumstances that have taken place since last March. I hope I am right, and I will read what he said very carefully and, of course, what he says in his response to the debate.

But I have to say, with some trepidation, that it is difficult for a Back-Bench member of the Conservative Party, who has been a speaking member of the Conservative Party for 75 years, to make a speech when my noble friend on the front bench has said nothing whatever about Clauses 18 and 19.

They are the two clauses that have been slipped into the Bill, as the Civil Service can advise Ministers to do, to warn us about what it may intend to do about the status of the Sentencing Council, which is a statutory non-departmental public body. The rest of what I will say is some interpretation of what that intention might be. It might be best if I go straight to the two questions that I was going to ask the Minister and then go back and explain why I am asking them.

My first question is: what is the democratic deficit that Clause 19 seeks to correct, and how has it come about? The second question is: how and when is Clause 19 intended to be implemented while keeping the confidence of the judiciary and the public intact?

I was subject to the National Heritage Act 1983, when a considerable number of non-departmental public bodies were put in place. I became the chairman of the Royal Botanic Gardens, Kew when it was turned into a non-departmental public body. Any interpretation of the Government’s position that implies that Parliament delegating some authority to a non-departmental body creates a democratic deficit is a very serious accusation. I believe that that, as this Government have said, raises a constitutional issue. I do not think there is any precedent for a non-departmental public body having its purpose reversed, and that is in effect what would happen if the council no longer issued definitive guidance and that guidance was instead, in effect, issued by Ministers.

That seems to me to be a constitutional issue. If there is no precedent, it is very serious. I very much hope that the Constitution Committee of this House, for example, has a look at the implications. That is probably enough about what may indeed be a constitutional issue.

There is a challenge to the council, which has not in fact been criticised for any form of democratic deficit. It has had, as I have seen it, the confidence of the judiciary, and that is very important. It has been responsible for providing information and trying to interpret that information as an assistance to the people who pass sentences. I have no comment to make on sentences as such; I simply say that that is what the council has done—it has provided information.

If noble Lords were to read the letter of 27 March, they would see that Sir William’s argument is: we have never interfered with policy, and it is no part of our purpose to interfere in policy; we are here to provide information as a form of guidance. Of course, nobody has to obey our guidance. It is guidance; it is not in any way enforceable. That is a very important point.

In conclusion, I am puzzled. I do not understand why the Government are taking this position in relation to the Sentencing Council. The Sentencing Council is a fine body and has done a very good job to date, and there is no reason to suppose that it cannot continue. If it is no longer to be responsible and accountable for issuing definitive guidance, I regret to say that that amounts to a death sentence.