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Lord Lloyd of Berwick moved Amendment No. 211:

The noble and learned Lord said: In this group of amendments I do not want to say more on the question of whether any of the clauses in this chapter should stand part because they stand or fall with my earlier amendment. Therefore, everything that needs to be said has been said.

Amendment 211 relates to Clause 254(6) which provides that:

    "The Secretary of State may by order amend Schedule 17".

My objection to that subsection is twofold. It seems to give back to the Secretary of State very similar powers to those of which he has lost as a result of the decision of the House in the case of Anderson. I feel as certain as I can be of anything that a minimum sentence imposed under Schedule 17 amended pursuant to powers under Clause 254(6) will also be challenged in the courts on the grounds that such powers are inconsistent with the provisions of the Human Rights Act.

The second ground is similar to the objection advanced—at an earlier stage in relation to Clause 148. It will be remembered that under that clause, the Secretary of State was to have been given power to increase the sentencing limits of magistrates. There was then objection from all sides of the House to which, in the end, the noble Baroness gave way. So, happily, Clause 148 is no longer part of the Bill.

I say exactly the same about Clause 254(7), which seems to give the Secretary of State very similar powers to those which, as the noble Baroness conceded on the previous occasion, he is not entitled. I beg to move.

Lord Cooke of Thorndon: If I understand the Bill correctly—and I may well not have—I support what the noble and learned Lord, Lord Lloyd of Berwick, said.

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Taken as a whole, the sentencing directions in the Bill are detailed to a degree perhaps unprecedented anywhere else in the English-speaking world. They could certainly hardly be supported by any strict adherent to the separation of powers. Overall, they could be seen—I repeat that I may not have fully understood them—as an approach to a take-over bid by Parliament and the executive of functions naturally belonging to the judicial branch of government. Problems under the European Convention could well arise.

In all the complexity, I shall concentrate on one point. Schedule 17(8) contains a provision that could be the saving of the legislative scheme. It states:

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

That appears to introduce a considerable measure of elasticity and enable the particular circumstances of a case to be taken into account. However, in the main provisions of the Bill, Clause 254(6) states:

    "The Secretary of State may by order amend Schedule 17"—

which is an apparently unfettered and overriding power. I respectfully ask the Minister whether that is, as it appears to be, intended as a avenue for a significant transfer of the judicial function to the executive. If not, why is Clause 254(6) unlimited?

Lord Thomas of Gresford: I do not propose to repeat what I said on the earlier amendment before the break. I wish to ask a series of questions on this group. First, why have the Government chosen to introduce the provisions in Chapter 7 before the Sentencing Guidelines Council has even been created, much less had an opportunity to consider and to advise on the appropriate level of recommendation?

Secondly, why do the Government seek to ratchet up the minimum sentence? We heard a lot about that from the noble and learned Lord, Lord Ackner, who pointed out that the recommendations are to be ratcheted up by at least 50 per cent.

Thirdly, why is it necessary to remove judicial discretion at all? We have no degrees of murder in the United Kingdom. There is no distinction in sentencing between a killing where the intention is merely to inflict serious bodily harm as opposed to deliberately taking life. For that reason, one would have thought that the very widest judicial discretion is required in setting minimum terms. Judges recognise human depravity on the one hand, and human weakness on the other. There are many grades in between which they are trained to assess and to consider.

The imposition of what are effectively degrees of murder, as proposed in the schedule, is arbitrary. There seems no real reason why the murder of a policeman would attract 30 years as the minimum term, whereas the murder of a security guard would attract 15 years as the minimum term. I recall a case where a security guard in Hong Kong was executed by the robbers of a jewellery store. That sort of situation exists in this country. I do not understand why there should be a 15-year difference between two such separate situations.

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Setting out a shopping list of aggravating and mitigating factors, compiled somewhere in the Home Office, is an insult to advocates, who, one would hope, would put forward mitigating factors—and, if prosecuting, aggravating factors—fully before the judge. There is no way in which he will not understand the particular circumstances of a case. Must he go through the checklist in Schedule 17 and give a plus for so much and a minus for something else in working out the appropriate sentence?

The noble and learned Lord, Lord Cooke, referred to the way in which the doctrine of the separation of powers is impinged upon in the proposals. It is surprising that a politician such as the Home Secretary should take it upon himself to introduce to such a Bill sentencing provisions of the nature that we are discussing, when his experience of courts is probably nil and his experience of the situations that give rise to the sort of cases that come before the courts is almost certainly minimal. Yet he and his department seem to feel that they can impose particular standards on people who have devoted their professional lives to such cases.

It appears that this is populism and vote-catching; it is not giving to the people of this country the careful and proper lead to which the noble Baroness, Lady Kennedy, drew our attention earlier. The whole purpose of the court system is to dispense even-handed justice between people who have committed crimes, to take away concepts of vengeance and vendetta and to try to return stability to society. Simply reflecting the popular will, which is what these provisions do, is no way to carry out the proper function of a Home Secretary. That is why we on these Benches oppose the whole of Chapter 7 in the way that is set out in these amendments.

Lord Borrie: On the scheme of the Bill, I find a great deal to commend in the way in which the purposes of sentencing are set out in Clause 135 and, if that is approved, those purposes of sentencing are approved by Parliament. Then, the Sentencing Guidelines Council, with its rightly mixed membership—it does not consist entirely of judges—lays down from time to time principles that judges will follow. Thirdly, there is the final independent discretion of the individual judge in the individual case to consider all the circumstances of that particular case over which he presides.

The real difficulty, however, is where the lines are drawn between each of those three parts of the scheme. We come to what I regard as the real difficulty in Schedule 17. One has to ask whether Parliament, in approving something like Schedule 17, should go down to the level of detail of particularity included in dividing up all the different possible circumstances in which murder is committed.

I freely draw on points made by a Liberal Democrat in the House of Commons—Mr Simon Hughes, their official spokesman—when he said that "invidious" distinctions are made in Schedule 17 between, for example, the murder of a child and the murder of a disabled person, or, alternatively, between the murder of a police officer on the one hand which is

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particularised, and the murder of some other equally important official acting in the public interest. That particularity, with which noble Lords may or may not agree depending on how one feels about those circumstances, is in tremendous detail in Schedule 17.

The point drawn out by the noble and learned Lord, Lord Lloyd of Berwick, on this amendment is that all of that particularity could be approved by Parliament if we agree. It could then—just like that—be amended at any point by the Secretary of State. Therefore, Parliament does not have the control. I am not suggesting that Parliament should have that degree of control over the particular differentiations between one type of murder and another, but certainly the Secretary of State should not.

Baroness Anelay of St Johns: The debate has ranged so widely that it may help the Committee if I introduce amendments on these issues that were in later groups, rather than tax the patience of the Committee by debating separate groups, especially in the light of what the noble Lord, Lord Borrie, has just said. The noble Lord draws our attention to the fact that the Government need to justify the different categories of murder that they have set out. With the leave of the Committee, I will refer to Amendments Nos. 212, 212B, 212C, 212D and 212F. All of those properly come within this particular response. I hope that gives the noble Baroness time to find the relevant parts in her own notes.

I can be very brief about Amendment No. 212, which is supported by the noble Baroness, Lady Linklater, the noble Earl, Lord Listowel, and the noble Baroness, Lady Stern. It refers in particular to the position of children and young people who are convicted of murder.

The Children's Society has briefed noble Lords on the matter. In another place, my right honourable friend Oliver Letwin and his colleagues made in clear in their debates on the Bill that we objected in the strongest terms to the inclusion of young people in Schedule 17. The Question whether Schedule 17 shall be agreed to is in the grouping.

There is a mandatory minimum term on conviction of murder for young people. Amendment No. 212 would ensure that, in cases involving children and young people, the discretion of the trial judge in setting the minimum custodial term in open court was retained under Section 60 of the Criminal Justice and Court Services Act 2000. The amendment would remove persons under the age of 18 from the provisions of Clause 254 and ensure that decisions on the length of detention in cases involving children were based on an assessment of the individual case.

At Third Reading in another place, the Home Secretary gave an undertaking to review the application of Clause 254 to children. As I mentioned earlier today, the Government offered a meeting on Monday this week about children in general that was, unfortunately, not able to go ahead. I hope that the Minister will give some indication of the Government's further thinking on those issues.

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I move even more directly towards the comments made by the noble Lord, Lord Borrie. The intention of Amendments Nos. 212B to 212E is to probe for the rationale behind the Government's categorisation of the seriousness of offences as "exceptionally" or "particularly" high. Why have some former death penalty offences been, apparently, downgraded from the whole-life tariff? Paragraph 4 lists offences that, the Government say, constitute the most serious murders and, therefore, qualify for the whole-life tariff. Amendment No. 212B would add to the Government's list murders that would, in the past, have been considered to be death penalty offences. Why have they been omitted from paragraph 4? If there is a reason, the Committee and the general public should know what it is.

Amendments Nos. 212C and 212D are consequential: they simply delete the parts of paragraph 5 that I transferred to paragraph 4 as part of the probing amendment. Amendment No. 212B would also delete paragraph 4. Paragraph 5 imposes a starting point of 30 years, instead of life. Amendment No. 212E would delete paragraph 6, which provides for a starting point of 15 years for all murders not caught by the definitions in paragraphs 4 and 5.

As other noble Lords have said, we have an odd situation in which the Government are saying, "Although murder is murder, some murders are worse than others, and we will tell you what they are". They have not explained to us why they have decided that particular murders fall into particular categories. Before we take decisions on Report about how we might respond to the Government's proposals in Clause 254 and Schedule 17, we need that explanation. The Government have not yet made a cogent case for subjecting those convicted of murder to the new starting points.

I have tabled other amendments giving possible solutions to the problems with Schedule 17. It is right, at this stage, that I do not move those amendments. I need to reflect properly on what the noble Baroness says in response to the noble and learned Lord, Lord Lloyd of Berwick, on Schedule 17. The Government have kindly offered a meeting later this week about sentencing, so I will have time to reflect on what the Government say tonight and at the meeting. I can take account of all of that and come back with a new package of amendments on Report, particularly as my first attempt to provide some kind of negotiated peace settlement failed so spectacularly last week, when the noble and learned Lord, Lord Ackner, told me that everything was perfect and there would be no movement at all.

9.45 p.m.

Lord Lloyd of Berwick: First, I apologise for referring to Clause 254(7), which does not exist, instead of Clause 254(6). My amendment is narrowly drawn, but the debate has gone wider. The fact that I have not addressed the wider questions about

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Schedule 17 does not mean that I approve of it in any way. I do not. I entirely agree with what has been said by Members of the Committee on that point.

The point on my amendment was put much more clearly by the noble Lord, Lord Borrie, than it was put by me. It is for the reasons which he advanced more clearly than me that I suggest that Clause 254(6) should be left out.

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