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Lord Chan: I also speak to this amendment, which would ensure judicial discretion in sentencing. That is exactly what happens at the moment. I declare that I am a member of the Sentencing Advisory Panel.

The Court of Appeal has accepted 10 submissions or recommendations from the Sentencing Advisory Panel, which demonstrates, as the noble and learned Lord, Lord Ackner said, that the judiciary accepts advice and consults on sentencing. The panel has found one issue difficult—that of minimum sentences, which have made the work of consistency in sentencing difficult and unbalanced. For example, an offender who commits burglary a third time would receive a custodial sentence of three years, which has been commented upon by the many groups of interested people who receive the recommendations and submissions of the panel. Those groups represent a large sector of the community as well as the professions.

The Government have got the legislation about right at the moment. However, my personal view is that things should not go too far, especially with regard to the sentencing guidelines council. It is not desirable for civil servants from government departments to comment on and influence sentencing.

Baroness Scotland of Asthal: I thank noble Lords who have participated in this debate for their thoughtful contributions. The noble Lord, Lord Alexander of Weedon, is right: the thrust of what the Government seek to do is very similar to the aspirations of those who sit on the Benches opposite. There is nothing on which we disagree. I hope that nobody will be surprised to hear me say that judicial independence is not only valued by this Government but jealously guarded, because it is a cornerstone on which our democracy is founded. Nothing in the Bill seeks to undermine that fundamental principle. There can be no doubt that the judiciary has discretion in the determination of sentencing for all offences. We therefore fully agree with the statement made in this new clause, and with much of what has been said this afternoon.

It may be useful to say a little now about how we see the broad scheme, especially to answer the request of the noble Baroness, Lady Stern. Noble Lords will know that, in time, we will look with greater particularity at each clause individually. At that stage, noble Lords will want to respond more fully, as shall I.

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With his characteristic sagacity, the noble Lord, Lord Carlisle of Bucklow, called the provisions verbose and self-contradictory and said that that was the best that could be said about them. However, with the greatest respect, I disagree. This is an incredibly complex area, although many would like to suggest that all is straightforward and simplistic. We know to our cost that that is not so. The Government have relied greatly on the work done on the Halliday report, which was rightly praised by the noble Lord, Lord Dholakia. We tried to set the context and my noble friend Lord Borrie was so right about the structure in Part 12 being the context and backdrop against which the exercise of discretion should be viewed.

We have learnt much in the past 50 years from the development and practice of sentencing. We have learnt about the futility of dealing with the offence without accurately and properly dealing with the offending behaviour. It has been said that certain individuals in the country serve life six months at a time—going in through one door and out through the other, backwards and forwards. By utilising all the provisions in the Bill, including those of restorative justice and rehabilitation identified by the noble Lord, Lord Dholakia, the Bill seeks to create a framework for the sentencer. The sentencer will be able not only to look at the individual offence, but to go beneath the problem.

We seek to bring not only the sentencer but the whole criminal justice system together to act in unison to provide better protection and justice for the victim as well as establishing a better-targeted and crafted process through which an offender can go. Hopefully, that will enhance the opportunity for change, for restoration, rehabilitation and reparation. Those may be contradictory, but must be held in the balance because they are equally necessary.

How do we do achieve that? Several noble Lords have mentioned minimum sentences as if they could be found in the Bill. Noble Lords will know that there are minimum starting points in the Bill, from which there can be mitigation and aggravation. We will return to them with greater particularity at a later stage, but I gently mention the provisions in Paragraphs 7 and 8 of Schedule 17. Paragraph 7 clearly states:

    "Having chosen a starting point, the court should take into account any aggravating or mitigating factors, to the extent that it has not allowed for them in its choice of starting point."

Paragraph 8 states:

    "Detailed consideration of . . . mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order."

Several noble Lords, including the noble Lord, Lord Kingsland, asked, "Where is the judges' discretion?" However, the provisions are founded on the cornerstone of the exercise of judicial discretion, first, in choosing a starting point and then in either mitigating it downwards or in taking into account those factors which cause a sentencer to go upwards.

The noble Lord, Lord Goodhart, applauds any attempt made to promote consistency. I am grateful for that. It is right that, for justice to be seen to be done,

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it must be done consistently. There cannot be one rule of law in the north of England and another in the south of England, notwithstanding the proper flexibility that there must be for regional differences, as mentioned by the noble Lord, Lord Renton. One knows that there are moments when, because of the nature of an offence in a particular area, a court may feel it right and proper to express itself with clarity, in order to bring that behaviour to a stop. Of course, there must be flexibility, and, in the provisions that we have set out, there is such flexibility.

The noble Lord, Lord Alexander of Weedon, made a point about speed without consultation. There has been a plethora of consultations about the matters. There was the consultation that went with Halliday, and, when it came to considering the issues raised in Part 12, the Government recognised the importance of the provisions and consulted further. I know that the noble Lord and others have said that the provisions were added to during the Bill's passage through the Commons and that changes were made in Committee. Respectfully, I say that that is to fail to recognise the nature of the parliamentary process. All Bills will be recrafted and refashioned as they pass through the other place. Indeed, our main role is to review, change or alter—we would say "enhance" and "make better"—those Bills.

Between April 2002 and March 2003, there were seven meetings between representatives of the senior judiciary and Home Office Ministers and/or officials at which the Criminal Justice Bill was discussed. My right honourable friend the Home Secretary and the Lord Chief Justice also met bilaterally on 21st March 2002, 25th November 2002, 13th March 2003 and 11th June 2003. The Committee will know that a protocol has been drawn up to cover consultation between the Home Office and the senior judiciary on Home Office legislation. That does not mean that we will always agree, but proper consideration will continue to be given to the proper comments made and concerns raised.

The noble and learned Lord, Lord Ackner, raised the issue of inappropriate control over the process—diluting, as he put it—by non-sentencers. Several noble Lords, including my noble friend Lord Borrie and the noble Lord, Lord Goodhart—to name but two—welcomed the introduction of a broader ambit for the sentencing council. The sentencing council will have an important and independent role.

5 p.m.

Lord Goodhart: I suggested that there should not be a sentencing council. I welcomed the Sentencing Advisory Panel.

Baroness Scotland of Asthal: I beg the noble Lord's pardon. I think that he said that, if we had the Sentencing Advisory Panel together with the current rules, we would not need a council. My noble friend Lord Borrie said that it was an enhancement, and I agree with him.

I think that it was suggested by the noble and learned Lords, Lord Mayhew of Twysden and Lord Ackner, that, in some way, the provisions would

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besmirch the role of the Attorney-General. He is not in his place at the moment, but I must say that we are blessed with a particularly gifted Attorney-General, as has historically been the case. I say without any fear of contradiction that the noble and learned Lord, Lord Mayhew of Twysden, discharged that role with great distinction, as did Lord Williams of Mostyn and others. There has not, in this country, been an Attorney-General of whom we have not been proud.

It is not a case of failure by the Attorney-General to exercise the function properly or at all. It is not a case of a lack of confidence in the judiciary or the legal officers. It is an attempt to create a framework within which there will be parity of treatment, flexibility and a solid foundation on which the exercise will be crafted. If we examine the provisions, as opposed to being terrorised by the mere thought of change, we will, I say respectfully, become much calmer. We will see, in virtually every provision, the opportunity for the exercise of discretion. The Committee should not for a moment underestimate the importance that a well-trained judiciary will have.

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