Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Elton: I am sure that I must be being stupid or that I have missed a bit of the Bill, but there appear to be only two alternative sentences available, and community service is not one of them.

Lord Wedderburn of Charlton: I am puzzled by my noble friend the Minister's response to this extraordinarily reasonable amendment. To put it generally, we have had the same sort of response from the Government on other Bills week after week. They say, "We must have this power or sentence in the Bill. Of course, we hope it will not be used; we hope something else will happen". If the Government believe that we should presume under-16s will not be sent to prison, why not put that in the Bill? After all, there must be more intelligent ways of dealing with them, however tall they are—I had not realised that height was a factor in sentencing policy to the extent thought by some noble Lords. Why not include in the Bill a presumption or statement that, in cases involving merely attending on the premises, we would not expect a custodial sentence?

We are constantly having debates on Bills when Ministers say, "It is not our intention that this should happen". I am sure that my noble friend will be aware of a very important decision in your Lordships' Appellate Committee on 10th July—Wilson v the Secretary of State for the DTI—in which the noble and learned Law Lords unanimously, one after another, restated that the intentions of Ministers are not law and are not to be taken into account in interpretation. What the Act says is what the courts will look at. I have summarised the judgment, but I am perfectly ready to cite the passages because I have them upstairs, although I am sure that my noble friend will be aware of that constitutionally important judgment.

One begins to worry about the attitude of our policy-makers to teenagers. We are going to lock them up for heavy petting and, although we hope we do not have to, if necessary, we will also lock them up for being on premises. I do not think that that is a very intelligent penal policy. My noble friend the Minister has made a much better case than her predecessors for what I call the "must have it but we don't intend to use it" policy. I appreciate that one will have to read the detail, but will she agree to look at the matter again?

Baroness Thornton: I humbly suggest to my noble friend Lord Wedderburn of Charlton that he read the Second Reading debate on this Bill. Many of the issues that he has expressed concern about were fully explored by noble Lords and the Front Bench. I am sure that many of his concerns and worries would be allayed if he took the time to read that debate carefully.

Lord Wedderburn of Charlton: I am most grateful to my noble friend Lady Thornton. I have read the

11 Sept 2003 : Column 452

debate. I was not present because I was under voluntary detention in a medical institution. I appreciate her point, which I greatly value, but I still maintain the points that I put to my noble friend the Minister.

Baroness Scotland of Asthal: First, it is not necessary to include community sentences in the Bill because they are generally available. If the noble Lord, Lord Wedderburn of Charlton, would be kind enough to look at the scale of fines, he would see that it varies. The importance of checking those scales is to make it clear to sentencers that there is a maximum fine above which they cannot go. That is why there is a maximum length of imprisonment and fine. Those are the two areas that will determine how the courts deal with sentences. The other means of disposal will indeed be available.

Lord Elton: I think that the Minister said that community service would be available under other provisions. However, we are dealing with a case brought under this Act—as it will be—are we not? If the case is brought under this part of the Bill to the court, as I read it, the court has only two alternatives other than discharge—imprisonment or a fine.

Baroness Scotland of Asthal: That is not how we understand the Bill, although I will certainly look at this point again. I understand that the reason the maximum is expressed in this way is, as I have just indicated, to set the limits in relation to fines and imprisonment. Noble Lords will know that in relation to those matters there can be a very wide spectrum, so it is absolutely necessary to make it clear to sentencers that six months' imprisonment or the maximum fine is there.

Noble Lords will also know that the Criminal Justice Bill deals with criminal offences up to a maximum of six months or otherwise. It also deals with the alternatives to prison or fines available to the courts when they are dealing with types of offence that fall within that bracket. Those powers of disposal will be imported by the sentencers' ability to deal with an alternative to six months' imprisonment.

Baroness Sharp of Guildford: Given the wording of the Bill, will the court be given any discretion in these cases? The wording implies that on summary conviction there shall be either:

    "imprisonment for a period not exceeding six months, or . . . a fine not exceeding level 5 . . . or . . . both".

It does not imply that there is any discretion in the hands of the court.

12.30 p.m.

Baroness Scotland of Asthal: If the noble Baroness will be kind enough to compare the way in which sentences are generally expressed—this comes back to the way in which draftsmen draft maximum sentences—she will see that this complies with the common practice. So if the position were as she has outlined, it would mean that the maximum sentence would have to be imposed in every case where a maximum sentence of 30 years or 25 years had been

11 Sept 2003 : Column 453

provided. We know that that is not how it works. The provision merely sets the outer limit of what the court can do on a given occasion. Obviously I understand the noble Baroness's anxiety, but I think that I can reassure her. I have a feeling that the noble Lord, Lord Phillips, who sits behind her, is anxious similarly to reassure her that my comments are sound.

Lord Phillips of Sudbury: How right the noble Baroness is—but she would not expect me to say just that. We live in terror of and amazement at the parliamentary draftsmen. However, surely our job is to make the legislation as comprehensible as possible to the general public and not merely clear to the experts in legal drafting. The Minister will want to consider one point. One could very simply say, "without prejudice to other sentences", or—to put it more clearly—"the maximum that shall be available with regard to a sentence of imprisonment", or "the maximum with regard to a fine shall be". As it stands, unless one were learned in the subject, one would think that that is what the law is providing and nothing else.

Baroness Scotland of Asthal: The difficulty is that, as virtually every piece of legislation currently adopted or adopted for a considerable time shows, that is the drafting style. It provides for,

    "a period not exceeding six months".

That obviously encompasses the thought and the reality that one could impose a sentence of less than six months. It is simply the way in which it is phrased.

Lord Phillips of Sudbury: The noble Baroness is a bold and legal Minister. I am simply saying that although this is absolutely correctly the tradition, it is a tradition that could well be changed for the benefit of the public.

Lord Wedderburn of Charlton: Before my noble friend responds, I think that she has now done damage to the massive forensic skill which, as usual, she exhibited in reducing the differences between all of us to a very small canvas. Now she throws in the whole tradition and style of the draftsmen. With the greatest respect to parliamentary draftsmen—which indeed I have—the parliamentary draftsman does not control Bills. Parliamentary draftsmen are there to give us the way in which to enact legislation. If he can do so only by reference, as my noble friend said in her last answer, I suggest that he should be asked to look at it again. If we mean maxima, why not say so? If we mean a presumption that these sentences will not apply, why do we say that someone staying on premises is liable to imprisonment or a fine at the levels, as my noble friend rightly said, or both? It is not just a question of style; it is a question of putting one's intentions into the law.

Lord Elton: To return to my point, I am not concerned with maxima; all that seems to me to read perfectly clearly. What I am concerned with is that I would expect there to be a paragraph (c) which states, "or sentenced to community service". The noble

11 Sept 2003 : Column 454

Baroness said that that is not necessary because courts, as I now understand, have unlimited powers when dealing with certain sorts of offence which are generally described and not particularly listed of applying all these recourses, unless they are limited in the statute under which the matter is brought to the court. That is certainly something that I was not aware of before. It is quite good to have people who are not lawyers discussing the law, because it is mostly people who are not lawyers who are affected by the law. I would strongly suggest that a paragraph (c) should be inserted for that purpose. I hope that, at Report stage, we shall convince the Government that it should be so.

Next Section Back to Table of Contents Lords Hansard Home Page