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Baroness Anelay of St Johns: I can satisfy the Minister on one count but not the other. As I explained earlier, my amendments are an attempt to achieve some form of consensus between the two paths that we have been following. One argues that the current system by which sentencing guidelines are provided is working very well. The noble and learned Lord, Lord Ackner, put his case, as ever, superbly. He is known, from his days at the Bar, as the master of the devastating aside, and his speeches are just as devastating as any of his asides. I respect his views; he quite rightly says that the model I have put forward is over-complicated. I appreciated that; it was my first attempt to provoke some form of debate and, by golly, it certainly provoked a debate.

The noble and learned Lord, Lord Ackner, maintains that the status quo should remain because it is working perfectly well. However, the noble Baroness, Lady Scotland, commented that she felt that public opinion was at an all-time low and that one needed to respond to that. I am trying to find some way of doing that without adopting the Government's rather extreme course.

I perfectly understand the views of my noble friend Lord Carlisle of Bucklow. He has remained true to his principles throughout his career, both as a Minister and in this Chamber. He has particular objections to mandatory sentences and the interference of the executive in the true province of the judiciary. I would never expect him to change his principles; he would never let me down on that.

I listened carefully to the noble Viscount, Lord Colville of Culross. I appreciate exactly what he says about the sheer number of offences, and the problem that for some of them there are no guidelines, nor are there likely to be. That is absolutely right—I agree with him. My difficulty with the Government's proposals is that they provide us with a model whose virtues the Minister has extolled today, while in the same Bill the Government do not put to the test the guidelines on murder as they have in later clauses. That undermines the Government's own professed confidence in the system with the Sentencing Guidelines Council.

The noble Viscount, Lord Colville of Culross, is right to direct me to look more closely before Report at the role of the Sentencing Advisory Panel and the annual report to Parliament. I shall do exactly that so that I may come back with something more flexible and realistic, which is what he asked for.

I shall consider all views. I shall have to return on Report with other amendments, but not with these—I can given that assurance to the Minister. These amendments will not see the light of day again, although they have served their purpose. I repeat the commitment that I gave the Chamber, that because my amendments are probing, even when I added my name to amendments tabled by the noble and learned Lord, Lord Ackner, I would not support any Divisions today on those amendments. I genuinely intend to take on

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board everything that has been said and to return with something more workable on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 169 to 172B not moved.]

Clause 160 agreed to.

Clause 161 [Sentencing Guidelines Council: supplementary provisions]:

[Amendments Nos. 172C to 172K not moved.]

Clause 161 agreed to.

Clause 162 agreed to.

Clause 163 [Guidelines relating to sentencing and allocation]:

[Amendment No. 172L not moved.]

5.45 p.m.

Lord Carlile of Berriew moved Amendment No. 172LA:

    Page 97, line 43, at end insert—

"( ) the overriding principle to reserve the use of custody for dangerous and sexual and violent offenders and seriously persistent repeat offenders."

The noble Lord said: We on these Benches welcome the proposal to establish the Sentencing Guidelines Council. We hope that it will hope to achieve a more consistent approach to sentencing, although we regard consistency in sentencing as something quite different from uniformity in sentencing.

I noted in the previous debate that there was not a single mention of regional variations in the country. This might represent an opportunity to express the hope that, although policy will become more consistent, there will remain the potential for sentences not to be uniform but to vary, not only on the basis of individual considerations but because of regional considerations.

I give the obvious example of mayhem on the seafront in some north Wales seaside resort. I choose north Wales only because I live in that part of the country and I should not wish to pick on anyone else. From time to time, I have also been involved in mayhem on the seafront at Rhyl, albeit in a professional role.

We are very concerned about public confidence in sentencing policy. We believe that public confidence could be seriously undermined if sentences cannot be carried out effectively because the prison system is overcrowded and is merely an uncivilised cupboard into which people are put and if the correctional services in the community are overburdened so that they cannot carry out the schemes that they have devised, which, when they work, are proving to be extremely effective.

We regard the "have regard" principles that are set out in the clause as crucial in determining the nature of the remit given to the Sentencing Guidelines Council and the focus of the work that it will do. Amendment No. 172LA is merely an attempt to enshrine in legislation something that we on these Benches regard

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as valuable and which was tucked away in the Explanatory Notes published on 21st May. I remind Members of the Committee of paragraph 791, which I am sure is in the forefront of your minds but merits a specific reminder. The note says:

    "The provisions will be implemented as part of a strategy which will aim to ensure that custody is reserved for dangerous sexual and violent offenders and seriously persistent repeat offenders, and that the benefits of community supervision are made available for more offenders".

I accept that in this part of the Bill, if one takes all the provisions together, one can extract from the porridge—or the dough, I might say—the plum that is summarised in those words. However, we would be much more content if those words, with which we wholeheartedly agree as a statement of policy, were enshrined in the Bill. Hence Amendment No. 172LA.

We agree with the Prison Reform Trust that a key function of the Sentencing Guidelines Council is to oversee the thresholds that would govern the use of community and custodial sentences, and in particular to ensure that prison is used as a last resort. There have been some very unsuccessful attempts to legislate for the use of prison as a last resort. Some of us, both in practice and, in my case, as a part-time judge, had to cope with those in the early part of the 1990s. They were not terribly successful and produced some nonsensical results.

We believe that the Bill could be improved by not only Amendment No. 172LA but Amendment No. 172LB, which would ensure explicit consistency between the Sentencing Guidelines Council and the legislative purposes of this part of the Bill.

We also believe that the monitoring and reporting roles of the council should be strengthened by the addition of a subsection, additional to Clause 163(6), which we have sought to include in Amendment No. 172LD. That would include that proper attention was given to the financial implications of decisions. It would be consistent, too, with recommendation 10 of the Halliday report, which said:

    "The proposed new guidelines should look for consistency of approach, rather than uniform outcomes, and recognise justifiable disparity, for example in cases where the offender has dependent young children".

We believe, too, that that approach should be included in the council's framework for guidance in the "have regard to" provisions, as I have called them.

Finally, I turn to Amendment No. 172LC. I recognise that at first sight the text may seem a little obscure, so perhaps I had better explain in a very few sentences the aim of the amendment. This amendment seeks to ensure that the council and the panel have a positive obligation to ensure that there is not inadvertent discriminatory practice in sentencing. Perhaps I can best deal with this by example from my own experience of the legal profession.

I am now old enough to look back over legal practice for more than 30 years. When I first started, in the last year of the assize courts and quarter sessions, I remember being shocked and appalled—as a very young barrister who had just emerged from university in the late 1960s—by going to court and hearing those

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older and wiser than myself representing people who were sentenced—I well recall, on more than one occasion—to 12 years' imprisonment for homosexual acts which are now not crimes at all, and which in cities such as London and under anti-discrimination laws are rightly regarded as part of normal social behaviour. It was not always so.

If one analyses what the courts used to do in the savage sentencing of otherwise perfectly respectable people for what were regarded then as moral rather than criminally reprehensible acts, one sees a degree of discrimination. I am sure that the judges did not think that they were discriminating. If they had been told that they were discriminating they would have denied it stoutly and defended themselves with the considerable skill at their disposal. I use that example as an illustration of how society's expectations and behaviour change sometimes more rapidly than we expect. What is normal or at least acceptable in one decade can become unacceptable in another and vice versa.

As a contradistinction to my example of sexual offences at the very beginning of the 1970s, I would cite the rightly hardening attitudes, socially and in the courts, towards domestic violence and sexual offences such as rape. We believe that a positive obligation on the face of the legislation would ensure that the tendency towards unconscious discrimination or discriminatory practice was monitored regularly as part of the obligations of the statutory bodies rather than as currently happens. What happens currently is that sentencing practice, after a number of years, suddenly has to catch up with changes in social dynamics and expectations which have happened in the previous years. The result can be injustice to individuals.

A few moments ago we had some very interesting discussions, introduced in particular by the noble and learned Lord, Lord Ackner. During those arguments, perhaps everyone slightly lost sight of the fact that at the end of the sentencing process there is a man or woman standing in the dock facing a man or a woman sitting on the Bench who is dealing with the human situation that has brought them face to face in that very emotional and difficult environment. We believe that not by prescription but by setting out a little more in the "have regard to" provisions we would improve the performance of the Sentencing Guidelines Council and make sentencing policy more coherent. I beg to move.

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