Clause 100

– in a Public Bill Committee on 10th March 2009.

Alert me about debates like this

Sentencing Council for England and Wales

Amendment moved (this day): 150, in clause 100, page 60, line 17, at end insert—

‘(1A) The purpose of the Council shall be to issue guidance to sentencers, having particular regard to the effectiveness of each form of sentence in reducing re-offending.’.—(Alun Michael.)

Photo of Frank Cook Frank Cook Labour, Stockton North 4:00 pm, 10th March 2009

I remind the Committee that with this it will be convenient to discuss the following: clause stand part.

Amendment 160, in schedule 13, page 148, line 20, at end insert—

‘(c) 6 members appointed by resolution of the House of Commons.’.

Amendment 161, in schedule 13, page 148, line 20, at end insert—

‘(c) 6 members appointed by the Prime Minister (“independent members”).’.

Amendment 158, in schedule 13, page 149, line 2, after ‘to’, insert

‘their experience and capacity for evaluating evidence on the effectiveness of different sentences, and to’.

Amendment 162, in schedule 13, page 149, line 7, at end insert—

‘(5) When appointing independent members, the Prime Minister shall have regard to their experience of and capacity for assessing evidence especially in relation to the effectiveness of sentences in terms of reducing re-offending.’.

That schedule 13 be the Thirteenth schedule to the Bill.

Clause 101 stand part.

Amendment 153, in clause 102, page 60, line 33, at end insert—

‘(1A) In proposing sentencing guidelines the Sentencing Council must have specific regard to the comparative effectiveness of different sentence options and indicate the data, research findings or other evidence on which the Council has relied in preparing its guidance.’.

Amendment 151, in clause 102, page 61, line 25, at end insert—

‘(aa) The relative effectiveness of different sentences in preventing re-offending;’.

Amendment 152, in clause 102, page 61, line 28, leave out ‘and their relative effectiveness in preventing re-offending.’.

Clauses 102 to 118 stand part.

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth

I am grateful for the chance to make a few final points in support of my argument that the Bill needs to be clear about the purposes of the sentencing council and about who should be on it and why. My main concern about a judge-dominated council is that the appeals process already allows judges to clarify the law. In considering whether to change or amend a specific sentence, senior judges comment on that sentence, which is what drives the lower courts.

It is worth remembering that judges can get it wrong. The number of appeals by the Attorney-General against unduly lenient sentences is one half of that equation; the other half is the appeals granted in the opposite direction. It seems to me that the driver for the sentencing council must be different—namely, what works. Earlier, I undertook to give an example. I pray in aid the work funded by the EsmÃ(c)e Fairbairn Foundation, whereby judges went to see what actually happens with community sentences. That produced significant evidence that many judges were unaware of what such sentences mean in practice and what happens to the offenders given them. The work demonstrated the benefits of such knowledge. I also pray in aid remarks made by the hon. and learned Member for Harborough about the value of a degree of oversight of what happens after the sentencing decision.

Courts are still slow to use restorative justice, but there is considerable evidence that the experience of facing up to the damage done to victims is salutary in triggering reform in offenders. It is life-changing in a way that reduces reoffending, and thus the likelihood of new victims being created. However, the impact on victims is also massive: quite apart from the effect of having been able to give the offender a piece of their mind, some 73 per cent. of victims felt safer as a result of a restorative justice event. That is significant. We heard evidence from victim support groups and asked what victims wanted from the criminal justice system. Apart from the ideal situation of the offence not happening in the first place, they wanted to be certain that it would never happen again. That certainty is what good sentencing, the reform of offenders and the prevention of reoffending is all about.

The Justice Committee’s report on the Bill built on the recent consideration that it had given to sentencing. As a member of that Committee, I found its hearings extremely productive. In commenting on the sentencing part of the Bill, the Committee expressed a number of concerns. I say gently to the Minister that I fear that the Bill follows too closely the findings of the review undertaken by Lord Carter—not the Lord Carter who is currently doing an excellent job in developing broadband Britain, but Lord Carter of Coles, who undertook a review of the impact of sentencing on prisons. I am sure that it was not intentional, but unfortunately his review was very poor and the evidence that he gave to the Justice Committee was probably the poorest that we received. We ended up with the impression that the report was rushed and not evidence-based. The concern is that the piece about the sentencing council as drafted follows the brief that he was given and the conclusions that he reached—that is, phrasing about reducing the number of people in prisons. That is of benefit because if there are fewer people in prison they can be dealt with properly and rehabilitation can be more effective. I have no difficulty with that. However, it is the effectiveness of  the sentencing that ought to be the driver, and the reduction in prison numbers ought to be a consequence of a better and more focused sentencing process.

The Select Committee respected the fact that

“at the very heart of the debate is a consensus that the prison population is growing too fast and that custody, especially short sentences, is not an effective approach for many offenders in terms of achieving rehabilitation or reform; with prison often characterised as ‘an expensive way of making bad people worse.’.”

The Committee argued that the study to which I have referred was undertaken at high speed and perhaps that left flaws in it. Finally, the Committee expressed a concern

“that an over-ambitious timetable had been set for the working group on a sentencing commission and recommended that ‘the Government should not seek to implement major changes in this area without effective evaluation of the potential consequences and the resources required to make such changes effective.’ We remain of this opinion. Accordingly, we recommend the most careful consideration of those provisions of the Coroners and Justice Bill relating to the remit of the new Sentencing Council for...Wales.”

I took that seriously and have listened to the evidence that we had in advance of the line-by-line scrutiny, which is why I have come up with these suggestions.

Marrying the focus on what works and is effective in reducing offending with the experience of the judges is a way of getting the right conclusion and a sentencing council that will improve the outcomes from sentencing and not just the logic of sentencing itself. It means a change to the Bill and I hope that Ministers, if they cannot accept my amendments today, will take away these thoughts and consider amending the Bill so as to deliver the objectives in a way that is more practical, more focused, and based on clear principles. I will not delay the Committee further, but I very much hope that by making these suggestions I have not sought to roll back what Ministers are doing but sought to make the sentencing council more focused, more effective and more successful in ensuring that the guidance given to courts is based on what will reduce reoffending, rather than on the particulars which, although important themselves, are not what the criminal justice system should be about.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

The right hon. Gentleman has done us a service in setting out, as a critical friend of the Government, the issues that need to be considered when talking about the Sentencing Guidelines Council. I know that the right hon. Member for Knowsley, North and Sefton, East has served on the Gage committee, so he brings with him—albeit that he was not able to hear this morning’s opening of the debate—a considerable detailed knowledge of the workings of a sentencing council. He very kindly invited me to a meeting with Lord Justice Gage to look at his findings last summer, so he will know that what Lord Justice Gage and the right hon. Gentlemen and their colleagues are proposing—what the Government are not proposing—is an American grid system, so let us put that aside and concentrate on what we are doing.

In clauses 100 to 118, I can see that the Government are proposing evolution of the current state of play rather than a hugely revolutionary system, but there are pinchpoints that will divide the Committee in the way that evolution is taking place. I will describe them briefly.

First, from the official Opposition’s point of view—I will leave the hon. Member for Cambridge to set out his stall—we do not accept that the new sentencing council should have the power to require sentences to follow its guidelines, as opposed to taking them into account. As the Committee will know, the current Sentencing Guidelines Council sets out its stall and guidelines and the courts are required to take those into account and explain themselves if they do not follow them. The Government propose that as a matter of compulsion, the sentences in the courts—be they in the summary jurisdiction or the Crown court—must follow them, unless there is an overriding reason for not doing so.

Secondly, the difference between us and the Government—I think that the Liberal Democrats are closer to the Government’s position on this than we are—relates to the influence of resources on the sentencing process. We see the assessment of resources—the way in which the available space in the prison estate and capacity in the non-custodial criminal justice system are deployed in terms of how they are provided and paid for—as essentially a matter for the Executive: the Ministry of Justice and those who advise Parliament. However, those factors should not impinge on the sentencing in any given case.

It may be true that legislation may follow an assessment made by the Sentencing Guidelines Council. Let us say, for example, that putting every burglar into custody would require 100,000 prison places. That is information the Government must digest, and which, if they agree with it, they must supply to Parliament, so that Parliament, advised by the Government, can reach a conclusion about what to spend on prisons; but when it comes to sentencing in particular cases, or in generic types of case, the sentencer must be free to give the sentence that he or she finds appropriate as a matter of justice, bearing in mind all the usual factors, such as the facts of the particular offence, the impact on the victim or society in general and the circumstances of the defendant. However, it should not, in our view, influence the sentence in a particular case, that a magistrate in, say, Exeter should be told that there is a shortage of prison places in a particular area of the country or across the country. That is a matter for the Government to sort out, rather than individual sentencers. It is simply not possible for a sentencer to have regard to the available resources across the whole country—or even across the region.

Bearing in mind the guillotine that we are under, it will not be possible for us to express our concerns about clauses 100 to 118 individually. I therefore propose, subject to your advice and direction, Mr. Cook, to call three symbolic votes. I make no secret of that, and I am giving the hon. Member for Wrexham notice so that he can deploy his resources, having assessed whom he has available. I do not expect to win any of the votes, but it is important that we mark the difference between the Opposition and the Government sides of the Committee, so that nobody can be under any misapprehension. I will ask the Committee’s opinion on one clause stand part. The most sensible way to do that is to pick the first clause from the 18 clauses that we have to deal with in relation to the clause stand part debates. I shall then ask your permission, Mr. Cook, for a Division under clause 102 on amendment 244, which I shall move formally at the appropriate time. That will enable the Conservative party to express its concern about what I headline “resource assessment”. After that, I shall then ask the  Committee, with your permission, to divide on amendment 248 under clause 107, which deals with the “follow/have regard to” point that I have outlined.

I appreciate that the Divisions on amendments 244 and 248 may not happen until later in our proceedings, but it is important that I set out my stall now because I am not in the business of making clever-clever points about catching the Government by surprise. That would be unproductive and have no huge value. It is important that we put our concern on the record and, it is fair to say, that we explain those points on which we share the concerns of not only the right hon. Member for Cardiff, South and Penarth, but other members of the Committee.

I am beginning to sound like a retired colonel from somewhere or other, but in my experience, sentencing is the most difficult part of the criminal justice process. Those who have been a magistrate and thus a sentencer, as the right hon. Member for Cardiff, South and Penarth has, and those who have been an advocate in front of the Crown court as well as the magistrates court and have had to mitigate on behalf of their clients who are up for sentencing, as has my hon. Friend the Member for Rugby and Kenilworth, will agree that it is not easy. When we read some of the intemperate criticism of judges and magistrates in the tabloid press, I am sure that we in Committee all agree as reasonable people that, in large part, that criticism is unfair. Clearly, from time to time, things go wrong, but the unduly lenient sentence appeal system that the Attorney-General can operate, which the right hon. Gentleman mentioned—although he would be the first to admit that such sentences are a tiny proportion of the number handed out during a given year—provides a correctional device. It also enables the Court of Appeal criminal division to gather up either individual cases or groups of cases so that it can give thematic judgments on particular types of sentence.

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth 4:15 pm, 10th March 2009

I intervene on the hon. and learned Gentleman simply to say that he underestimates the importance and significance of the success of appeals against unduly lenient sentence, given that the threshold is high and they have to be not only unduly lenient, but unreasonably so. Several hundred cases have reached that threshold. It is not a big point, but it is more significant that he is suggesting.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I do not need to have a long argument about the matter. Statistically, the number of cases is tiny compared with the number of sentences passed each year. Let us just leave the matter there and allow the Committee to make a bit more progress.

On the wider points, I draw attention to some concerns that have been expressed to all of us by the Bar Council, which sent us a brief on such aspects of the Bill. On the “have regard” as opposed to “follow” point, it says that the stricter approach that the Government advocate,

“a) will involve an artificial exercise of comparing the facts of an individual case with an abstract list of criteria (when having to decide the most comparable category), which may simply generate more argument and appellate activity;

(b) may make it more difficult for a judge to exercise independent judgment in a particular case if it seems that there is a burden on the defendant to demonstrate that a guideline sentence would not be in the interests of justice;

(c) could consequently have the effect of increasing the prison population if judges are constrained to pass longer sentences than they might otherwise pass or feel that they may be criticised or appealed when showing leniency.”

In any event, unduly lenient sentences can be and are appealed—that was the point I discussed with the right hon. Gentleman—so that if a judge is overly generous, the sentence can be increased. That neatly describes my concerns about amendment 248, so when we come to discuss it, I will not go beyond what I have already said.

I also draw the Committee’s attention to a useful report produced last year by the Prison Reform Trust entitled, “Creating a Sentencing Commission for England and Wales: an opportunity to address the prisons crisis.” I am not going to read out everything in it, but it contains a number of interesting suggestions, some of which are more in line with the Government’s proposals than mine. None the less, it is a useful resource document that describes the issues that we need to consider. We do not have time today to consider those matters at length or in the detail used by the Prison Reform Trust in its report; instead, I will pick out one or two salient points with a view to helping our deliberations.

It is undeniable, and I hope uncontroversial, that there is a prison capacity crisis. The figures speak for themselves: when the Government came to power in 1997, there were 60,000 to 61,000 people in prison; there are now approximately 83,000—the figure goes up and down around that point. Whatever one thinks of people who commit crimes and what they do or do not deserve, the prison population has grown in an uncontrolled way for almost two decades.

The Prison Reform Trust says that there is “extensive sentencing disparity”. That is debateable, but it is what a lot of people think. The opening remarks made by the right hon. Member for Cardiff, South and Penarth suggest that he agrees with the Prison Reform Trust. I suggest—I might be wrong as I have not done any research into this—that the disparity may be greater in the magistrates courts than in the Crown courts. However, I have no evidence for that, it is just a hunch.

The Prison Reform Trust says:

“Any effective response to these problems needs to take into account all the factors that are driving up the prison population and leading to disparity.”

That is a sensible and uncontroversial suggestion.

“The quality of media coverage of law and order issues, public opinion about crime and punishment, and the associated penal populism which characterises political debate all need to be factored into any strategy for containing the prison population.”

Criminal justice policy and sometimes individual sentences are matters of huge interest to the public; they are also matters of “public interest”. I hope that the Government are sufficiently self-confident to resist knee-jerk reactions from newspapers that want stories to fit their headlines, rather than allow them to design or have too great an influence on criminal justice policy. The public unquestionably have a proper interest in participating in public debates about the shape of our criminal justice and sentencing policies.

The Prison Reform Trust goes on to note:

“Simply constraining sentencers’ discretion, without addressing the underlying pressures for tougher sentencing, is not a viable, long-term solution to the prisons crisis.”

I wholly agree with that. It continues:

“A long-term solution needs to have both political and technical dimensions to it.”

Again, that is not controversial.

How can a sentencing commission address the crisis? The report continues:

“A sentencing commission can serve three main functions: providing guidance to sentencers; gathering and providing information and statistics for monitoring, planning and policy development;”

I do not mind either of those, but I am concerned that the information should influence the Ministry of Justice and the Executive, not the sentencer.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

The proposals in the Bill, and those of the Gage committee, are that we specifically reject the use of the word “commission” in favour of the phrase “sentencing council”, which builds on the experience that already exists.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I am referring to the Prison Reform Trust report that came out in 2008. It does not matter, for our purposes, whether it is a commission or a council, but we are in the business of deciding what it should do and what its powers should be.

Thirdly, the Prison Reform Trust says that a commission or council should provide

“community engagement—to inform and to consult with the public.”

Again, that seems to be wholly outside the realm of the courts; such matters are for the Government and academics and are wholly disconnected from the court system.

On guidance for sentencers—this takes us back to my point about “have regard to” and “follow”—I am concerned that under the Bill, the sentencing council, armed with its resource assessments, will issue instructions, which is what they will essentially be, to sentencers in both the Crown and magistrates courts. Those will—if not expressly, at least by implication—say, “We can no longer provide custodial or non-custodial resources for the following types of offence.” Therefore, although in the past one might have thought it appropriate to give a custodial offence to a persistent burglar, or to give a particular type of community sentence to a less serious offender, one could not do so now, because we cannot afford it.

Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

The hon. and learned Gentleman is embarking on a flight of fantasy. The proposals in the Bill do not do that at all.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

The Minister says that, but if one looks at how the clauses are constructed, it is clear that clause 109, which deals with resource implications of the guidelines, will feed into the guidelines, which must be followed, rather than simply be taken account of. We can have a perfectly friendly argument on whether that is a good idea, but it seems to me, after reading the relevant clauses under discussion this afternoon, that as night follows day, the guidelines published and promulgated by the council will have that effect.

I know that the Government and the Liberal Democrats think that that is a good thing, and so does Mr. Martin Narey, who used the analogy of rationing in the health service. I did not think that that was a true analogy, but none the less, the Labour and Liberal Democrat parties, and no doubt many others, think that this is a good idea. I do not happen to agree.

Maria Eagleindicated dissent.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice) 4:30 pm, 10th March 2009

The Minister shakes her head and says that I have got it all wrong. But that is what seems to come out of the Bill, given the way in which it has been spun. She can tell me why I am talking nonsense in a minute, either from a sedentary position or on her feet. Either way, I shall listen with interest, but either way we are right to be deeply concerned. We are not engaged in some student union activity. We are right to be concerned and to warn the Government that, if they interfere with the discretion of sentencers to adjust their sentences to fit with Government resources, although that is sensible in many ways, in this sphere of public policy it is ill advised.

I shall not go through the Prison Reform Trust’s research and monitoring or community engagement recommendation for a sentencing council, because time does not permit and those matters are not strictly relevant to my amendments. What I shall do—briefly—is discuss some of its key recommendations, to see how they fit within the proposals that are coming from the Government and that came from the Gage committee.

The Prison Reform Trust recommended:

“A well-resourced, unitary sentencing commission should be set up to replace the”

Sentencing Advisory Panel and the Sentencing Guidelines Council. In the current recession, it will be interesting to see how well resourced that is, but if the Bill is passed we shall get a unitary sentencing commission.

Secondly, the trust recommended that the commission

“should have a wide range of functions—principally the provision of sentencing guidance, research and monitoring, and community engagement”, although I worry about the real definition of “guidance” in relation to sentencing.

Thirdly, the trust says:

“The sentencing guidance produced by the commission should be based on the existing SGC guidance and should thus permit sentencers to give due weight to offender-related factors in passing sentence. Parliament should consider restricting the scope for departure from the guidance”— an area of disagreement, where the Government with their “follow” and we with our “take account” part company.

“The commission should monitor compliance with the guidelines, contribute to government forecasts of prison population trends, assess the impact of proposed reforms to sentencing policy, and conduct original research.”

I have no issue with that fourth recommendation, which is sensible. However, its impact on sentences concerns us.

The fifth recommendation is that

“Community engagement should be seen as a core function of the commission; this would entail both informing and educating the public about sentencing, and undertaking public consultation.”

Again, I have no objection, but that does not seem to be something that should impinge on the activities of sentencers without the intervention of legislation on particular types of offence.

Sixthly, the trust states that

“The commission should aim to be an authoritative and trusted source of non-partisan information and guidance on sentencing practice and policy.”

We need not get hung up about that. Our real issue is with the effect that resource assessments will have on the sentencing guidelines and the requirement under the Bill for sentencers to follow strictly the guidelines of the commission.

In relation to clauses 100 to 118, I have described a number of matters in particular amendments, but subject to the discussion that we had right at the beginning, perhaps before the Committee officially started, I had better wrap up my remarks as I have, without asking the Committee to permit me to discuss each separate set of amendments, seriatim.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

I apologise that I was not here for the start of the debate. Unfortunately, or fortunately depending on one’s point of view, I had to attend a meeting of the Intelligence and Security Committee this morning, at which we were interviewing the Foreign Secretary about one of the cases mentioned in this Committee last week. My presence there was, unfortunately, necessary.

I want to make a couple of brief points in response to the hon. and learned Gentleman. He mentioned the Gage report and generously said that I was a member of that group—on which I sat throughout its proceedings—and briefed him. We offered to brief the hon. Member for Cambridge, but unfortunately he was unable to attend and sent a researcher along at the time. I am not saying that as a criticism; he had the opportunity but was unfortunately unable to take it.

I want to enlighten the hon. and learned Member for Harborough on one point. He said that we carried out a courts survey. We did that because we were alarmed, at the beginning of our inquiries, that there was a complete lack of data on sentencing. In fact, we covered that in chapter five of the report. The hon. and learned Gentleman speculated about whether the departures from guidelines might have been greater in the case of magistrates courts compared with Crown courts. I am unable to answer his question because we only surveyed Crown courts—10 of them over one month, with 229 returns. I will not go into the statistics, but there was a significant departure from the guidelines in a number of cases. If the hon. and learned Gentleman has the time to read the document before we get to Report stage, he might find the direction of travel of those departures surprising, but now is not the appropriate time for me to get bogged down in that detail.

May I characterise the hon. and learned Gentleman’s concerns? First, he is concerned that the procedure laid down in the Bill, which to a large extent follows closely the recommendation of the Gage report, is likely to be too prescriptive and therefore would fetter the courts’ discretion. I think that he is being overly cautious in his interpretation of what is intended to happen under the Bill and what the Gage committee intended. The senior members of the judiciary on that committee—magistrates were represented as well—defended their corner well against people like me who would have fettered the freedom of the courts a lot more, had I had my own way. However, I am here to represent what they said rather than my personal opinion. Those people explicitly set out in the report the ways in which the court needs to have discretion and those are repeated in the Bill. For example, clause 103(3) mentions mitigation. I will not  go into the definition of that, but it is one of the discretions available to the court in determining specifically the circumstances that may soften the sentence as a result of mitigating factors. The courts are also able to decide whether a particular offence in particular circumstances was so bad that that aggravation should also be reflected in the sentence.

Clause 103 also mentions sentencing ranges. The hon. and learned Gentleman is right to say that we rejected as overly prescriptive the grid system that was studied in North Carolina and Minnesota. The direction that we went in, echoing what already happens in the Sentencing Guidelines Council, was to give ranges so that there will be some certainty, predictability and consistency in sentencing, because there is widespread concern that, currently, there is not always consistency in sentencing. Indeed, the data that we collected from our survey bore out that concern.

The hon. and learned Gentleman’s first concern about the discretion of the courts being fettered is overstated. I hope that when he has had the opportunity to consider this matter more fully, he will realise that what we have recommended, and what is set out in the clauses, will allow considerable judicial discretion. I do not think that they will have the effect that he fears.

The hon. and learned Gentleman fears that we are tying resources too closely to sentencing. The working group debated this issue a great deal, and it was clear to us that there should not be a direct relationship. However, we also thought that if we can collect sufficient data to enable some prediction of the size of the prison population and the demand for community sentences and probation orders, it ought to be possible to predict what resources are likely to be available. That is not to say that sentences should be determined and guidelines produced with that in mind.

The hon. and learned Gentleman thinks that the Executive has such a role, but, last night, Parliament considered estimates. There was no Division, but nevertheless Parliament decides what resources are to be made available for every area of public expenditure, including prison places, custodial places, community sentences and probation. Although such estimates may go through on the nod without a Division, it is Parliament’s responsibility to be aware of the relationship between sentencing and what we can predict about what might happen in the future, as well as the resources that will be needed.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

The right hon. Gentleman enables me to put to him amendment 257, which says:

“Whilst the courts may have regard to the availability of correctional resources, for the avoidance of doubt the courts must not pass a sentence that is wholly determined by resource assessments which are expressly intended for the guidance of the Secretary of State in planning for and providing such custodial or community sentences as he advises Parliament, and it considers, necessary in the light of such assessments.”

How does that fit his response to my case? Let me make it clear that it is amendment 257 that I wish to press, not amendment 244; I may have misled him and others by referring to it wrongly.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

The amendment that the hon. and learned Gentleman has just read out is unnecessary, but I expect that my hon. Friend the Minister will make that point better than me when she replies to the debate. The clauses follow closely what the working group  thought appropriate, and his amendment, on which we will presumably be voting, is based on an overly cautious interpretation of what the clauses intend. However, it is probably better that my hon. Friend responds to that point, as I have risen purely to defend my committee’s recommendations.

Bearing in mind that my hon. Friend the Member for Wrexham said to me earlier that silence is golden—I seem to remember that that was a pop song in the ’60s by the Tremeloes, and I shall not sing it to the committee—I shall conclude now.

First, however, let me repeat a point that I made on Second Reading. If we do not have a regard for resources or a means by which either the Executive or Parliament and sentencers know what is needed and ensure that it is provided, we will get a misalignment, which we have had in the past. Unless one provides a massive amount over and above what is needed to ensure that whatever sentence comes up, it can be accommodated, there will be periods of peaks and troughs. When we get peaks, what will inevitably happen is that the Government of the day—whoever they are and all of them have done it—will bring in early release schemes. Such schemes are the most unsatisfactory way of dealing with the problem. They are completely arbitrary and result in a loss of alignment between the sentence intended by the courts and what actually happens.

Although the hon. and learned Gentleman makes his points in good faith, they are based on a misinterpretation of what the working group said and how such a clause would work in practice.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice 4:45 pm, 10th March 2009

I want to come back to the amendments tabled by the right hon. Member for Cardiff, South and Penarth because they are the crucial amendments in this debate. My attitude to many of the other clauses depends on the Government’s attitude towards his amendments. If the Government looked kindly on his amendments and said that they want to see policy moving in that direction, I would be far more inclined to support what is in the Bill now than if the Government were to be hostile to them. I shall try to explain that in a few minutes.

In his amendments, the right hon. Gentleman is trying to focus what the sentencing council does on what works to reduce reoffending. That is the central issue. If we can reduce the risk of reoffending, we end up protecting the public. If we do that, we put the victim at the heart of the criminal justice system because we are ensuring that we have fewer victims in the future. The resource issue, about which the right hon. Member for Knowsley, North and Sefton, East was talking, is part of that. If we spend public resources on sentences that do not work as opposed to spending them on sentences that do, we are, by that very fact, allowing more crime than would have been the case had we used public resources in the best possible way. We have a duty to ensure that public resources are used in the best possible way to reduce reoffending and crime to the extent that we can.

As the right hon. Member for Cardiff, South and Penarth said, we know quite a lot about what works and what does not, and we should use such information. Obviously, we do not know everything. There are great acres of ignorance in criminology because it is not a  field that has benefited from a vast amount of research money. None the less, we know some things, and we should work with them. For example, the right hon. Gentleman mentioned restorative justice. The evidence in favour of restorative justice is striking. It was done using randomised control trials and in a way that is comparable to medical research, using meta-analysis across a large number of small-scale trials. Each of those trials would not, in itself, show the effect, but when they are all added together the effect is striking. I am talking about not only the important effect on victims that the right hon. Gentleman mentioned, but the big effect on the number of crimes committed by offenders who have undergone that process. We are talking about big numbers here—reductions of a quarter, compared with the other disposals that might have been used in those cases.

We know that certain forms of drug and alcohol treatment work. We know also that, for the most part, alcohol treatments work with violent offenders and drug treatments work with other offenders to reduce the amount of reoffending. Furthermore, we know that those treatments tend to work better in the community than in prison. There was some controversy in the press over the weekend about that point, but the press, as usual, missed out the point that what works to reduce reoffending is what protects the public in the longer term. On resource use, drug and alcohol treatment inside prison is not just less effective but massively more expensive than it is outside.

We know other things, such as how prison can work better and that education, training and work is the way to organise our prison system. If sentencers knew that such activity was not likely to be included in the prison sentence, they would understand what the sentence meant rather better than they do now.

We know what does not work, too. Before the break, I mentioned the research on short, sharp shocks, and it simply shows that they do not work. Some senior judges are wrong and believe the opposite, however, so external guidance needs to be given to them on that point. Policymakers do not know it either, and we keep returning to programmes that are proven not to work. In fact, we know that “scared straight” programmes not only do not work, but make things worse: they increase the reoffending rate. All that social scientific evidence must be fed into the system, but as the right hon. Member for Cardiff, South and Penarth said, if we just leave it to lawyers and judges, it will not be; it will just be treated as an external matter to be thought about theoretically and to cause external criticism now and then, but not to be built into the system. I fully support his attempt to build such social scientific thinking into the system and not just leave it on the outside.

In fact, I would go further and set up a national institute for criminal justice excellence, giving it the job of testing what works, using existing research and its own commissioned research, including studies into the effectiveness of existing sentences. We tend to evaluate new ideas, which is fine, but not old ones. We need to do so, however: we need to be able to compare old and new ideas. We know, as the right hon. Gentleman said, that short prison sentences do not work, but we need to know more and to compare new and old ideas systematically, so that we can allocate public resources in a way that works for the system and for future victims of crime.

The right hon. Member for Knowsley, North and Sefton, East made the point about how we keep sentencing policy in line with Government resource-allocation decisions. What we have done in the past, and what we might be trying to do with this legislation, is to resolve the issue either by allowing the sentencers to do what they want—so that the Government have to guess what they are doing and provide resources for whatever they guess, creating the immense problem, as the right hon. Gentleman said, of having to provide for over-capacity and, effectively, wasting resources—or by allowing the Executive branch to tell the judicial branch what to do and how to sentence people. We do not want either, but that is what the sentencing guidelines and sentencing council proposal tries to do.

I would go even further. If we had something like a national institute for criminal justice excellence, it could feed into both the sentencing guidelines and Executive policy. Because both systems would be reading off the same hymn sheet, there might automatically be more co-ordination. They would be using the same evidence.

It should be obvious from what I have just said that I am not as sympathetic as the hon. and learned Member for Harborough to the argument that judicial discretion should never be narrowed. I think that there is a case for saying that judges should be required to take into account the evidence on effectiveness of sentencing. My main worry about the provisions is that they do not adequately take into account effectiveness, which is the purpose of the amendments of the right hon. Member for Cardiff, South and Penarth. However, even if the amendments were to be accepted, how would they work in practice?

For example, how would clause 103 work for a sentencer who is faced with a particular offender and is told to sentence according to the guidelines? The guidelines seem to tell the sentencer to start with a mechanistic view of retribution and then to move away from retribution if it is in the interests of justice to do so. The question then is how effectiveness gets built in. How does what we know about what works get built into such a system? That does not happen at present.

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth

I do not disagree with much of what the hon. Gentleman is suggesting, including a better structure of research, examination and comparison of outcomes across sentences. However, I think that it shows great ambition on his part to try to make that much further leap at the Committee stage of a Bill, when we are part way through. If we made the start that is contained in my amendments, we would be moving in the right direction and building on what has been done in the past that has been right; it is not a bad thing to have regard to things that have worked. It might well be that some of his more ambitious ideas would be a natural consequence a year or two down the line, but they would take time. Making what we are about clear would be an immediate step that would set us in the right direction.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

The right hon. Gentleman is right and anticipates my conclusion. The provisions are not perfect and they are not what I would do—obviously, the two are not always the same—but they are a move in the right direction.

As I said, I am worried about how clause 103 works. If the right hon. Gentleman’s suggestions were looked on kindly by the Government, they would raise a problem that would need to be thought about regarding building effectiveness into the design of the ranges. The ranges seem to be designed so that retribution is the first step, and effectiveness and everything else comes second, but we need to think about how to do it the other way round.

I have some concerns about other clauses, as well, such as clause 105, which is about revised and urgent guidelines. Obviously, revision is fine, but I am slightly worried about making it too easy to pass urgent guidelines, because they are liable to be headline-driven, not evidence-driven. We need to be careful about allowing the system to work too quickly in some circumstances.

I am also slightly worried by clause 108, which deals with imprisonment for public protection, but perhaps I have misunderstood it. IPPs are part of the problem with the prison population—they are a big part of the crisis of rising prison numbers—and I would like the Minister to describe exactly how clause 108, which is about the application of the sentencing guidelines to IPPs and similar kinds of sentence, will work. As I read it, it seems that the guidelines apply to the notion of determinate sentencing in relation to IPP, but not to the decision of whether to impose an IPP in the first place. I hope that that is not right because if it is, the guidelines are being applied the wrong way round. They ought to be applied to the decision on whether to have an IPP at all. This is contrary to what the hon. and learned Member for Harborough was talking about, but I think that such a situation gives the judiciary too much discretion and will lead to a further expansion of the prison population in a way that we do not want to see.

Finally, I shall mention resources, to which the hon. and learned Gentleman referred. In a big way, the issue of resources is connected to the Government’s attitude towards the effectiveness question. It seems that if effectiveness is built into the guidelines—in a real, not just symbolic, way—it is perfectly sensible to build resource use into the same pattern, because the use of public funds needs to be as effective as possible, given what we have got. However, if that is not to be the case and the sentencing guidelines are really going to be about retributiveness—for example, in relation to clause 103 and the ranges—with effectiveness as a kind of ill-defined back stop relating to ill-defined cases, I cannot see how resources are relevant. Resources are not particularly relevant to the harm caused by the defendant, the defence intention or the defence culpability, which is what clause 103 refers to.

I am in a bit of a dilemma. In a world in which the amendments of the right hon. Member for Cardiff, South and Penarth are incorporated into the legislation in a coherent way, I would be fully in favour of allowing the sentencing guidelines to be built up using resources as a starting point and, in fact, designing them in a strict way and saying that they must be followed by the judiciary. However, if that is not the case and retributiveness still rules the roost, I am not entirely clear why resources are in the guidelines or why judges have to follow them, because judges seem to me to be almost as good at working out retributiveness questions as sentencing councils.

In the end, the question is what do the sentencing council’s guidelines bring to the table? I think that they can bring evidence of effectiveness from the outside to the table—the kind of information and arguments that would not naturally occur to judges and lawyers in courts. That is why I said at the start that my attitude to much of the rest of the debate depends on the Government’s attitude towards the crucial amendments tabled by the right hon. Gentleman.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice) 5:00 pm, 10th March 2009

Will the hon. Gentleman explain briefly what he meant by his reference to the kind of factors that would not necessarily or naturally occur to a judge? I did not quite follow that point.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

They are the factors of the relative effectiveness of sentences given the social scientific evidence. I do not think that that naturally occurs to lawyers—it ought to perhaps, but it does not. Lawyers tend to put such matters to one side and say, “That’s very interesting, but the real stuff is how culpable the defendant was and how much harm the defendant intended or caused.” That is the stuff referred to in clause 103 in relation to sentencing ranges.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

I wonder whether there is another problem that relates to clause 102. The hon. Gentleman will see that clause 102(11)(d) refers to the cost of different sentences when the sentencing council comes to construct the sentencing guidelines in the first place. In clause 102(11), there are a list of things to which the council must have regard, and subsection (d) links

“the cost of different sentences and their relative effectiveness in preventing reoffending”.

The difficulty is that they might not be the same thing. The most costly sentence might also be the most effective in preventing reoffending. Is there a problem there, and how would he resolve it?

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

Technically, one could multiply the two together, or divide one by the other, depending on how one wants to do it. However, the hon. Gentleman is right that that linking seems to put cost first and relative effectiveness second. The right hon. Member for Cardiff, South and Penarth has made that point in certain of his amendments, which would move the reference to “relative effectiveness” to the top of the list in clause 102. That was the whole point of some of the amendments.

The hon. and learned Member for Harborough referred several times to amendment 257. It could be argued that the amendment is not needed because it is implied already in the Bill and generally in practice, but it would be helpful to state that under the current system—this is what the right hon. Member for Cardiff, South and Penarth said—individual judges are not required to take into account the availability of prison places in individual cases. That is not at all intended; and it is very important to rule it out. Resource allocation questions should be built into the construction of the guidelines. After that, the application of the guidelines should be a matter of legal interpretation, not of getting judges to carry out economic assessments of the effects of particular sentences. That would be quite wrong, which is why, if the hon. and learned Gentleman presses his amendment 257, I shall support him.

Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

I shall do my best to deal with this wide-ranging debate, which is now a stand part debate on the whole of part 4, chapter 1. I shall also deal with the amendments tabled by my right hon. Friend the Member for Cardiff, South and Penarth and those referred to by the hon. Member for Cambridge, which come slightly later.

The amendments raise a number of basic issues. First and foremost, I would like to make it clear that this part of the Bill establishes a new body—the sentencing council for England and Wales—and in doing so implements the recommendations of the working group chaired by Lord Justice Gage, on which my right hon. Friend the Member for Knowsley, North and Sefton, East sat. He provided us with a very useful run-through of the working group’s intentions, and I agree with his points, although I shall not repeat them because he set them out very well.

The intention is not to fetter the proper sentencing discretion exercised by the independent judiciary; nor is it to tie sentencing decisions to the wider issue of the availability of prison places or of any other type of sentence, despite the fears that have been raised by the hon. and learned Member for Harborough and others during the evidence-giving sessions. I want to make it very clear that that is not the Government’s intention. As I think that he accepted at the beginning of our remarks, ours is an evolutionary approach, as recommended by the working group. It builds on the good work of both the Sentencing Advisory Panel and the Sentencing Guidelines Council, which will have completed most of the major guidelines by the time that the new council starts work. Their work will be used as a foundation on which to develop a better understanding of sentencing practice, and will increase our ability to predict the impact of guidelines and inform the wider role of the new council.

The working group consulted widely on its recommendations, to which we are now giving effect, and there was strong support for an evolutionary approach, despite one or two of the revolutionary things that the hon. Member for Cambridge was edging his way towards in his remarks. We have not had a major falling out on that evolutionary approach. Nobody is in favour of the US-style sentencing grid, whether it is from South Carolina or Minnesota, and we all want to build on the good practice in respect of what is there, because we believe that guidelines help sentences. It is intended that the sentencing council will enhance consistency, make sentencing more open, ensure that the public understand and have confidence in sentencing, and generally be an improvement on the current arrangements. However, there will be a requirement on the council to prepare guidelines on the reduction of a sentence for a guilty plea on the application of the totality principle, which is necessary for the council to meet its duty to monitor the operation of guidelines under clause 110.

It has been suggested that what we are trying to do is unduly prescriptive: that clause 102 causes resources to be taken into account, that clause 103 has too rigid a sense of an arrangement for setting out the format of guidelines, and that clause 107, with its duty to follow guidelines, completes the coup d'Ã(c)tat of the destruction of the independence of sentencers. I am exaggerating only slightly some of the concerns that have been expressed. That is not the intention. When it draws up guidelines,  the council must have regard to current sentencing practice, to the needs to promote consistency in sentencing and public confidence in the criminal justice system, to the cost of different sentences, to their effectiveness in reducing reoffending and to the council’s monitoring of the application of its guidelines.

My right hon. Friend the Member for Knowsley, North and Sefton, East set out how little information was available to the working group when it started its work, so we can all see the sense of the monitoring that we are trying to get the new sentencing council to do. Apart from the monitoring, all the other arrangements are already there. There is not a requirement on the council to have regard to resources when drawing up or revising guidelines. As well as my saying that, my right hon. Friend the Secretary of State for Justice has made that clear on Second Reading. We do not resile from that.

Let me deal with the question of whether the format of the guidelines is too prescriptive, and other matters to do with clause 103. The clause provides that where a sentencing guideline relates to a particular offence, such as robbery, it must divide the offence into levels of seriousness based on the offender’s culpability and on the harm caused. That clause sets out the format of offence-specific guidelines. It does so because clause 107, about which some concern has also been expressed, places a duty on a sentencer to follow the guidelines. So clause 107 makes it clear that a sentencer must indicate how he has followed the guidelines by reference to the ranges. Courts need to know that they have to follow the guideline range for the seriousness of the offence before them. That is necessary to meet the principle of promoting consistency and predictability, which was highlighted in the Gage report.

The format also reflects the way in which the offence-specific guidelines are currently framed by the Sentencing Guidelines Council, so there will not be an enormous departure from the practice in respect of the current arrangements. All the current offence-specific guidelines issued by the SGC already comply with the format set out in clause 103. However, because concern has been expressed about these matters, and because we have a record in this Committee of listening to concerns expressed by all Committee members, we are willing to look at clause 103 to ensure that there is sufficient flexibility in circumstances where this format might not be practicable. I give that undertaking to the Committee and hope that that might allay some of the concerns that have been expressed.

Concern was expressed about clause 107 and the duty to follow guidelines. Of course, that is a central provision of this part of the Bill, which sets out that the court must, in sentencing an offender, follow any relevant guidelines unless it is satisfied that it would be contrary to the interests of justice to do so. That provision attempts to give effect to the Gage report recommendation to enhance the current departure from guidelines test from a duty to have regard to guidelines to a duty to follow guidelines, unless it is in the interests of justice not to do so. However, again, the Government are willing to consider any amendments that might improve that clause or allay the concerns that have been expressed.

We certainly thought that having the ability to depart from guidelines in the interests of justice would guarantee judicial discretion in individual cases. We do not believe that the clause limits discretion, but we are willing to go away and think about this, and if members of the Committee, or others, want to suggest something that they think would be better, we will consider it.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice) 5:15 pm, 10th March 2009

That is extremely helpful, but we heard from magistrates in the evidence session, and I know from my conversations with judges, that they are concerned about the way in which clause 107 is phrased. Are the Government looking for further amendments to those that we have tabled, or will they, of their own initiative, be tabling revisions to clause 107?

Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

We will be looking to come up with better formulations, but we are perfectly willing to listen to and meet anyone who has any ideas. Indeed, the Under-Secretary of State for Justice, my hon. Friend the Member for Lewisham, East, and I met magistrates before the Bill progressed to this stage, and I think that they left her room rather more reassured than when they entered it. None the less, we are willing to continue considering how best to ensure a balance between consistency and judicial discretion, because that is the prize that we all seek. We do not want to end up just with what we have, because it can be improved, and we are not trying to fetter discretion on sentencing in individual cases. Nor are we trying to do more than was set out in the report of the Gage working group, which we seek to implement. I am not going to argue that we have got it all completely correct.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

My hon. Friend is being very thoughtful in her response, but does she agree that, regardless of any amendments that she might consider making at a later stage, the phrase

“contrary to the interests of justice”

in clause 107(1) gives quite wide discretion?

Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

Yes, it does give wide discretion, but there is clearly some concern about that wording and concern that the clause’s overall impact, in connection with the perceived impact of other clauses, will be to fetter discretion too much, but that is not our intention.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

For those of us who think that the effective prevention of reoffending is the crucial issue, another concern is that the wording “the interests of justice” does not seem apt to cover what we are worried about. We could have a phrase about it being “in the interests of society” instead. The Minister is right to reconsider that wording.

Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

I think that the wording “the interests of justice” will cover an awful lot of territory in a courtroom setting.

Let me close my general remarks on the stand part debate by making it clear that the new duties on the council to assess impact are not intended to mean that it has to take account of resources in drafting or revising its guidelines. This is about the council providing additional  information that can be used by Government to plan for the demand on prison places, community orders and new justice services.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

The Minister has said twice now that there is nothing in the Bill to suggest that the sentencing council should take resources into account, but surely, clause 102(11)(d) must mean that when the council is setting sentencing guidelines for the judiciary to follow, unless it is in the interests of justice for it not to do so, it must consider the “cost of different sentences”. Surely, we cannot divorce that concept from the concept of having regard to resources.

Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

There is nothing wrong with having an understanding of the cost of different sentences, but that does not imply that we should start setting guidelines that use only the cheaper sentences, which is obviously what the concern is. It is not the intention of the Government to try to fetter the work of the council in that way.

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth

I read that as saying that the sentencing council should look at cost and effectiveness and balance the two. That is not unreasonable at that stage of consideration. My problem is that the effectiveness of sentencing only comes in as a balancing factor with cost, rather than being the prime thing about which the council needs to be concerned.

Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

Yes, and the point that my right hon. Friend makes brings me neatly to dealing with—the hon. Member for Cambridge is now going to throw me off.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

I hope not. The way I read paragraph (d)—in fact, the whole of clause 11—is that the relative costs and effectiveness of different disposals are relevant. What the sentencing council is not taking into account is the budget—the estimate—for the Ministry of Justice. It does not take into account the total. It just takes into account the relative effectiveness and costs of different kinds of sentence, which seems eminently reasonable.

Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

I agree with the hon. Gentleman, after all of that. I now regret being unpleasant to him earlier.

I would like to move on to the points that my right hon. Friend the Member for Cardiff, South and Penarth made about his amendments. It seems some time ago that he moved them. Briefly, there are, in effect, two groups within the amendments, which, as he said, are designed to give greater prominence to the role of reducing reoffending in the creation of sentencing guidelines. The first set, which includes amendments 150 to 153, deals with the role of reducing reoffending in the creation of guidelines, and the second set, which includes amendments 158 and 160 to 162, aims to make experience of reducing reoffending a significant factor in the recruitment of members of the council. That is just to remind members of the Committee what he said.

First and foremost, I have a great deal of sympathy with what my right hon. Friend and the hon. Member for Cambridge have been saying about the impetus and motivation for the amendments, which is that some  expertise in and understanding of what reduces reoffending is important when considering sentencing guidelines. I do not disagree with that at all. However, I am not convinced that the amendments are the best way of injecting that into our system. To answer the hon. Gentleman’s point about the Government’s approach to the amendments, I do not think that we are at all apart on the importance of that in the overall scheme of things, but I am a bit concerned about the impact that the amendments would have on the work of the council. I shall briefly explain why.

Amendment 150 would add a statutory purpose for the sentencing council to issue guidance to sentencers and would place a requirement on it to have particular regard to the effectiveness of sentences. It suggests that the primary role of the council should be to issue sentencing guidelines, but that is not its only purpose, of course. It has other purposes, and all its functions are important. I have some concern about the impact of trying to specify in statute that one is more important than another.

Amendment 151 would put the need to have regard to the effectiveness of reducing reoffending at the head of the list of factors that the council must have regard to when drawing up the guidelines, but there is no order of precedence in the factors at present. It must have regard to all of them. I think that it could create an imbalance and confusion if we start saying that it must think of one as more important than another. That is another worry that I have about the formulations used by my right hon. Friend. To say that there must be specific regard to one of the factors when other factors need to be considered might cause confusion and unduly downgrade some of the factors that have to be thought about. We do not want to do that.

That is not to say that we do not accept and understand my right hon. Friend’s point about the importance of having an understanding of what reduces reoffending injected into the system, as he and the hon. Member for Cambridge have both explained. Section 142 of the Criminal Justice Act 2003 requires a court that is dealing with an offender to have regard to the reform and rehabilitation of offenders, as well as to punishment, crime reduction, public protection and reparation. There is a general requirement on all sentencers to have regard to such matters, and we need to build on that, rather than skew the way in which the new sentencing council is to work.

Amendment 153 requires the council to have specific regard to the effectiveness of reducing reoffending and to indicate the evidence on which it relied in producing its guidance. However, if evidence is not available or if its relevance to sentencing for a particular offence under consideration is dubious, it could prevent the council from issuing guidelines, which we would not necessarily want to do.

Although we want the council to have regard to evidence-based information that is available and relevant in order to inform its guidelines—including comparative research materials from other jurisdictions, for example—we do not see it as the council’s role to commission its own research into the effectiveness of different sentencing outcomes, because that simply is not one of its functions. That is the responsibility of the Government, and it is not something that we were planning on transferring to the council under the Bill. The Government are committed  to reducing reoffending, and their responsibility for building up a knowledge base on what works for reduced reoffending remains and will be implemented under our own research programmes.

The amendments on the composition of the council would probably introduce more confusion that we would like. I understand my right hon. Friend’s thinking behind them, in that he is trying to make sure that the personnel doing the job have sufficient knowledge of what works and what can be done to reduce reoffending. However, having independent members appointed by the Prime Minister or members approved by resolution of the House, and overturning what is currently a planned judicial majority, would give us cause for concern.

Twenty members might be a little unwieldy. The current Sentencing Guidelines Council has 12 members; the Sentencing Advisory Panel has 15 and the current plan under the Bill is that the new council should have a judicial majority, albeit small. My right hon. Friend’s amendment would make the majority non-judicial and would increase the number of members of the council. It is important to have the benefit of non-judicial members, but it is also important to have the confidence of the judiciary in the sentencing council. On that basis, we have decided that, albeit small, there should be a majority of sentencers on the council. That is the best way in which to retain the confidence of sentencers while enabling the proper reflection of the wider views of the public.

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth

Does my hon. Friend think it a good idea to have confidence in sentencers, as well as having the confidence of sentencers?

Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice 5:30 pm, 10th March 2009

Certainly. One of the main purposes of asking the Gage working group to do its job was to see how we could increase the confidence of the public in sentencers, which is particularly important. I am not saying that I do not understand the fact that there might be different views about whether there should be a judicial majority or a non-judicial majority, but we have settled on a small judicial majority rather than a larger imbalance.

I accept that my right hon. Friend and other members of the Committee might have a slightly different view about whether that balance is correct. However, we do not want to suggest to sentencers—who do a difficult job, as a number of hon. Members have mentioned—that the sentencing council is intended to undermine their independence or impinge wrongly on individual decision-making powers in respect of individual sentences. We believe that a small judicial majority on the sentencing council sends the right signal while allowing plenty of opportunity for people with the kind of expertise that the amendments tabled by my right hon. Friend and supported by the hon. Member for Cambridge seek to introduce.

I am not in a position to accept my right hon. Friend’s amendments as currently drafted, because some of the disadvantages that would be introduced would outweigh the advantages. However, several members of the Committee certainly have sympathy with his aim, which is to introduce relevant expertise that goes beyond  the law on sentencing and encompasses measures that work and employs a wider range of research about what reduces reoffending. We can do that by ensuring that those appointed have the right characteristics. I cannot accept the amendments as currently set out, but I hope that from what I have said, my right hon. Friend will understand the sympathy with which we view them. On that basis, I hope that he will agree to withdraw his amendment.

I want to mention amendments 244 and 257, as they were specifically referred to by the hon. and learned Member for Harborough. I think that we are to have a vote on amendment 257. Amendment 244 seeks to remove subsection (11)(d) from clause 102. That was referred to by the hon. Member for Rugby and Kenilworth. It seeks to address the concern that the council and the courts will be required to have regard to resources when drawing up guidelines on sentencing.

I want to make it clear that that does not represent any change in the current arrangements—it reflects existing practice. During the passage of the Criminal Justice Act 2003, which established the Sentencing Advisory Panel, and throughout its operation, no concerns have arisen. The council must have regard to the cost of different sentences and their relative effectiveness in preventing reoffending. Therefore, when drawing up guidelines and considering ranges and starting points, the council should, among other things, consider the cost effectiveness of different sentences in reducing reoffending. That does not mean that the guidelines should be influenced by the availability of resources, and I hope that members of the Committee will accept that.

Amendment 257 is meant to clarify clause 109

“for the avoidance of doubt”

—that wonderful phrase that we all love in legislation. However, I suggest that it does not achieve its goal. Clause 109 places a duty on the council to assess the resource implications of its sentencing guidelines. The council will be required to publish an assessment of the impact of a new guideline, or a revision to a guideline on prison, probation and youth justice services. The assessment does not and should not influence the drafting of a guideline. At no stage in the process of creating or amending guidelines is the council required to take account of available resources—it just needs to produce an impact assessment. It is not about having regard to resources; it is about transparency.

When the council produces a draft guideline, it will also produce an assessment of the impact. However, there is no requirement for it to reconsider a guideline simply because the assessment is considered by one party to be unaffordable. I want to make it clear that the council does not need to have regard to the availability of resources in drafting or amending guidelines.

I am concerned about the amendment tabled by the hon. Member for Cambridge, because it introduces the suggestion that the court can, or should, have regard to resources in sentencing in an individual case. It goes on to say that no sentence should be wholly determined by regard for resource, which suggests that some of it should be. The amendment seems to seek to introduce the very thing that the hon. Gentleman is trying to prevent.

The issues are technical ones about statutory interpretation, but I have made the Government’s position clear in that respect. I have tried to deal with the points  raised in all the stand part debates. I hope that my right hon. Friend the Member for Cardiff, South and Penarth will consent to withdraw his amendment.

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth

I wonder whether my hon. Friend the Minister will help me. In her remarks, she said that she has sympathy with what I am trying to do in clarifying and focusing the work of the sentencing council. However, she went on to say that she could not accept the amendments as drafted. I take full responsibility for the drafting, and accept that my amendments are capable of improvement. Is the Minister sufficiently sympathetic to what I argued at the beginning of the debate to offer the opportunity to discuss those purposes and perhaps to consider whether the Government should come forward with amendments on Report to further improve the Bill?

Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

I am happy to offer my right hon. Friend a discussion. On the basis of how that discussion goes, I might be happy to offer him the second thing that he asked for. However, I am not committing myself to that at this stage.

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth

The Minister, in refusing to commit herself at this stage, shows great wisdom, which I respect. Briefly, my concern about her response is that Ministers are in some difficulties, because having offered a judicial majority, taking it back might give them all sorts of problems with the judges. I would encourage them to be brave and not to feel intimidated. If numbers are of such great relevance, reducing the numbers of judges in order to achieve balance might be the way forward.

I accept what the Minister said about the sentencing council having other purposes. Yes, but the problem is that the whole criminal justice system is confused about the council’s purpose and is often unclear about what it is for. I do not think that adding to that confusion is possible, nor that my amendments would do that. Only the youth justice system was provided with clarity of purpose in the 1998 Act, which I look back on with some pride, and that has been the part of the criminal justice system that over the past 10 years has delivered most effectively.

As the Minister has said, I do not want to inject into the system a focus on what works; I want what works—I want the effectiveness of sentencing in reducing reoffending to be right at the heart. That will not skew the council, unless the council is in danger of regarding reducing reoffending as an irrelevant sideshow, which it is not.

On the membership, I am grateful to the Minister for acknowledging that there is some value in getting people with knowledge and experience of what works, but I also want to see people with analytic capacity, who can question the system and demand evidence. As she has said, the Government are committed to reducing reoffending and, for that reason, they need to require their agencies and instruments to focus on reducing reoffending.

Having heard that the Minister is sympathetic to what I am trying to do, I accept that there is difficulty for the Government in accepting amendments as drafted. If our discussions are as exciting and positive as she has suggested, the Government might possibly move, otherwise I shall bring back further amendments on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 12, Noes 5.

Division number 7 Nimrod Review — Statement — Clause 100

Aye: 12 MPs

No: 5 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause 100 ordered to stand part of the Bill.