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Baroness Anelay of St Johns: In my attempt to telegraph my amendments I did not make clear to the Minister the purpose of Amendment No. 212E to which I referred when speaking to the Bill team earlier this week. Its purpose is not suddenly to catapult these people into the higher bracket but to try to tease out why we should not leave that matter to the discretion of the judge. The Minister said that the Government intended the measure to be a framework and a starting point. That makes me think of the words of the noble and learned Lord, Lord Lloyd of Berwick, and his concern that the order-making power that is given so readily to the Secretary of State could mean that the framework and the starting point become totally outwith that which is described to the Committee tonight.

Baroness Scotland of Asthal: I understand that concern. However, as the noble Baroness will see, we have given a great deal of thought to how we should structure the measure. It has not been done lightly. The noble Baroness will know of the intense work that was entered into during the preparation for Halliday and as a result of Halliday. In trying to achieve a statutory structure which gives voice to those different elements, we believe that we have the right framework which draws a balance between parliamentary setting of the boundaries and judicial discretion. We do not envisage the measure being changed easily, but we appreciate that if empirical data and different circumstances result in the matter being re-examined there must be an opportunity for Parliament to have its say.

I know what is usually said about affirmative resolutions and the affirmative procedure—that you have a choice. You can either strike the measure down or let it go. If I have correctly gauged the flavour of this Chamber on this Bill, I know precisely the course that noble Lords on the Benches opposite and others might take if an order were to come forward with which they did not feel generally content. As for the operation of the affirmative resolution procedure in this setting, I am fairly confident that both Houses would have an opportunity to have their say. I am grateful that the noble Baroness is not seeking to say that the starting point of 15 years is necessarily wrong, simply that she does not want the current or any other Home Secretary to be able to change it without—

Baroness Anelay of St Johns: Again I have not made myself clear enough. I was trying to signal that I have a general unhappiness with the whole setting of mandatory tariffs in the sense we are discussing, if that is not a contradiction in terms. I was trying to be as

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gentle as I could in pointing out to the Government that perhaps some cases should be left to the discretion of the judiciary.

Baroness Scotland of Asthal: We say that the issues are left to the discretion of the judiciary. I do not have to remind the Committee of paragraph 8 of Schedule 17, which sets out quite clearly that:


    "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 gives the widest possible judicial discretion to do justice on the facts of the case, having taken into account the factors set out in the paragraphs that precede it and paragraphs 9 and 10. We would say that the balance was clearly there. I think that I have dealt with all the amendments.

The Earl of Listowel: I thank the noble Baroness for answering most of the questions on the amendment that we asked, but there was one area to which I do not think that she had an opportunity to reply. She has said that the consequences of the proposals will be that persons convicted of serious offences are likely to have longer terms in custody as a result. I hope that I understood that correctly. I am very concerned about that because, as recently as a year ago, guidelines on such sentences were decided on by the Sentencing Advisory Panel. Why the sudden leap in increases in sentences for serious crimes?

I am particularly concerned when I think of the numbers of such people who have been through the care system—more than 50 per cent, I expect, have had experience of foster or residential care. In at least the case of residential care, those people have been grossly let down over many years. Steps are being taken, but we have an awfully long way to go. Will such people actually be punished and penalised? Of course they have a large element of self-determination, but there is also a large element of societal neglect in their cases. I would appreciate an assurance from the Minister on that.

I want to express my disappointment that children will be included in the clause. However, I will look at how that works out technically, as the noble Baroness alluded to technical problems that would mean that it was important to include them.

Baroness Scotland of Asthal: In relation to the offences, I am not saying that the tariffs will automatically be higher in all cases. We are saying that the Bill now sets a clear framework. I have tried to describe how the provisions will interact to enable the court to make the right type of decision for the right type of offence. We say very clearly that the expectation will be that, if someone commits a multiple child murder in sadistic circumstances, the expectation for such an offence will be a whole-life tariff.

On the previous occasion that we debated the matter, I said that there were cases that demanded a whole-life tariff because of their particular seriousness and nature. The noble and learned Lord, Lord Ackner, did not dissent from that, and it is clear that the noble

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and learned Lords who heard the Myra Hindley case did not either. It is the judgment that was clearly made in the case of Hindley, and there may be very few cases to which the tariff should justly be attached. However, the fact that it should be attached is clear.

Of course I hear all that the noble Earl says about the numbers of people who have been in care who appear in criminal statistics. Members of the Committee will know that that is why we are working together, right across the piece, with health and all other agencies—inter-governmental and outside agencies—to provide the support and framework that will mitigate the damage caused to and by children who are removed from their homes because of lack of care, neglect or otherwise.

Noble Lords will know that I share passionately the concerns of the noble Lord about the work that must be done. That does not detract from the fact that some of those children, for whatever reason, then tragically find themselves within the category of persons who are, frankly, dangerous and who have to be cared for in a location of some security until it is safe and satisfactory for them to be released into the public again. The Bill incorporates provisions which would affect the kind of children about whom I speak.

Lord Thomas of Gresford: The noble Baroness refers to the framework for sentencing. I see it as a strait-jacket that is put together by people without hands-on experience of the courts, be they Home Office civil servants or the Home Secretary today who becomes the Foreign Secretary tomorrow. Contrast that with the judges of this country. No experienced judge is appointed to a criminal court nowadays who has not had 25 years of daily attendance at courts, hearing all kinds of offences and dealing with all kinds of people.

There is flexibility. The noble Baroness referred to changes. There are changes that happen quickly in time, and there are changes between one part of the country and another part of the country. For example, if one looks at recent history, who would have thought two years ago that terrorism of the kind that we are now facing would be such an important part of our lives? Who would have thought 20 years ago that drugs would become such an important part of society's ills? Who would have thought that there would be race riots in some of the cotton towns in Lancashire, or that there would be invasions of rural areas from urban areas in other parts, or terrorism in Wales? All kinds of changes come quickly forward.

The judge, with his or her experience of the courts and the system, is in a position to take on board changes that are happening all the time—it is a continuous process—and can, as a result, weigh what is, in the particular place and time, an important mitigating factor or an important aggravating factor. Those of us who are experienced in the criminal system all know how from time to time, in various parts of the country, the courts take upon themselves condign punishment of a certain type of offence. That is the kind of role for which courts are designed. Therefore, a strait-jacket from Parliament, from people without

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experience, must be compared with a flexible system of experienced professionals who know what they are doing. There is no comparison at all.

Lord Lloyd of Berwick: Mine is the first amendment in the group. I hope that the Minister will consider again the order-making power under Clause 254(6), just as she considered again the order-making power under Clause 148 and was eventually persuaded that that order-making power was not justifiable; nor is it justifiable here.

The Minister protested that the power would not be used very often. We have heard that argument over and over again in recent legislation brought before this Chamber. We have it heard it over and over again from the noble and learned Lord the Attorney-General. It is not an argument which is good enough for the Chamber. If they are sufficiently important, those matters ought to be addressed by primary legislation and not by the order-making power. However, having made that point, and giving notice that I shall want to bring forward the amendment on Report, I beg leave to withdraw.

Amendment, by leave, withdrawn.

10.30 p.m.

[Amendments Nos. 212 and 212A not moved.]

Clause 254 agreed to.

Schedule 17 [Determination of minimum term in relation to mandatory life sentence]:

[Amendments Nos. 212B to 212E not moved.]

[Amendment No. 212F had been withdrawn from the Marshalled List.]

Schedule 17 agreed to.

Clause 255 agreed to

Clause 256 [Appeals]:


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