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Baroness Walmsley: My Lords, I thank the Minister for her response. I agree that it is critical that we address these problems. I accept that it is the Government's wish to help young people with them. But, the Government often ask noble Lords to take into account care and practice. I ask the noble Baroness: why is the Youth Offending Teams' current practice of making these assessments not being taken into account? Why is it still seen to be necessary to have this practice in legislation, because it is being done anyway as a matter of routine?

I shall not be dividing the House on the amendments, but I urge the Government to roll out these measures carefully and to monitor them rigorously. We shall look carefully at that monitoring. After young people have been subjected to this kind of testing, they should be followed up for a sufficient length of time. We will also look very carefully at any attempt by the Secretary of State to change the age—particularly downwards—for mandatory drug testing.

On Amendments Nos. 110 and 111, I agree with the noble Baroness that we need consistency and clarity about how young people are treated under the law. But we should like that to be consistent with the UN Convention on the Rights of the Child in preference to

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the provisions of PACE. However, we will, as the noble Baroness says, return to the matter. With those words, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 209A:

    Page 86, line 13, after "sentence" insert "or a suspended sentence"

The noble Lord said: My Lords, Amendments Nos. 209A, 218B, 218C, 218CR and 220D make a number of minor drafting improvements to the Bill. Amendment No. 209A corrects an omission and enables pre-sentence drug testing to be applied where the court is considering passing a suspended sentence or a community sentence. A suspended sentence will of course be available only for adults, but the choice of requirements that can be applied to it are exactly the same as those that are available for a community sentence in the Bill.

I hope that with that simple explanation your Lordships will find these amendments acceptable. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 210 and 211 not moved.]

5.45 p.m.

Clause 149 [The Sentencing Guidelines Council]:

Baroness Anelay of St Johns moved Amendment No. 212:

    Page 89, line 32, leave out "seven" and insert "ten"

The noble Baroness said: My Lords, the amendment would increase the number from seven to 10 of judicial members of the Sentencing Guidelines Council. I propose first to speak to the narrow issue, in a sense, of my amendment before referring to the Minister's amendment and how I hope that it might interrelate with mine.

The most important question on the Sentencing Guidelines Council is to determine how the balance of membership should be comprised and how it should be balanced between the twin aims of ensuring that the sentencing guidelines retain a substantial input from the judiciary and the requirement that they should command public confidence.

In Committee on 8th October, I put forward my own answer. "My own" I have to say reflected all the work that went on behind the scenes by my honourable friends in another place. It was supported at Second Reading in this House by the noble and learned Lord the Lord Chief Justice; namely, that the council should have only judicial members, but that its decisions on the guidelines should be subject to scrutiny by Parliament. That proposal was part of a very broad package of proposals that perhaps were—in a phrase of the Minister's—"carefully crafted" to achieve judicial discretion as far as possible while retaining some modicum of parliamentary scrutiny.

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That, as I thought, "carefully crafted" proposal was blown totally and utterly out of the water by the disapproval of noble Lords and in particular that of the noble and learned Lord, Lord Ackner, who is in his place, and the noble Viscount, Lord Bledisloe. One has to say, "Right, that battleship is sunk", and to consider what remains within the principles set out that can be brought forward, and to which one will adhere throughout the progress of the Bill.

So, I have to try to reconcile the two aims, to which I have referred and which I believe have wide support around the House, including from the Government; that these are the two issues which need to be balanced.

We are now left with the structure in the Bill. We are trying to adapt our amendments to reflect the fact that we have to deal with the Government's offer. From the point of view of the Front Bench on this side of the House, we now have a situation in which we have two models on sentencing guidelines for murder that will be debated in the rest of this Bill. One model is that proposed by the Government and the other is that proposed by the noble and learned Lord, Lord Ackner.

The Minister's model tries to achieve the same kind of objectives that we want. They have gone around the matter the wrong way in some parts, which is why we are trying to amend it. In particular, we think it goes too far in encroaching on judicial discretion. We shall come to the detail of some of that later. I will not be able to attack the Government on that because my defence has been removed from me by other noble Lords in this House, so I suspect that the noble Baroness will sit very contentedly and watch the Bill go through virtually unamended from this point on.

I turn to the model proposed by the noble and learned Lord, Lord Ackner, which of course is very attractive and beguiling and has the support, I know, of very principled Members from my own Benches; that is, that judicial discretion overrides all. The Front Bench in both Houses has always—in government and in opposition—supported the Government throughout on the proposition that those who are sentenced for the most serious forms of murder—if one can be more serious than another—those that used to carry the death penalty, should indeed sometimes be kept in prison out of society for life. In the past, the Home Secretary had the right to take part in determining that period. That was of course blown out of the water from the Government's point of view by the Anderson case. They then brought forward this model.

I needed to get that explanation on to the record today because it will give notice to noble Lords that I have been completely—the only polite word I can think of—"stuck" in what I can honestly and honourably do on the Bill from hereon. The amendment provides one of the honourable solutions that I can still find as a way forward; that is, that we have always supported the Sentencing Guidelines Council, but if we are going to go down the line the Government say, the majority of the people on that council must have judicial experience. My

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amendment—I picked the number 10 out of the air—was simply to enable me to make that point to the Minister and to invite her to give an assurance to the House that the majority of the voting members—it is important that they should be voting—on the Sentencing Guidelines Council must be those who have or have had judicial experience.

Then, to my surprise and pleasure I noted the amendment of the noble Baroness, which is in the group. I read the accompanying letter, which was written on 29th October, but, sadly because of recent postal problems—despite the best efforts I am sure at being sent on 29th—reached me only earlier this morning. However, the Home Office team was very kind in ensuring that I had an e-mail copy of it yesterday, so I did have advance notice.

The Minister is doing what I consider to be the right thing for different reasons—not wrong reasons but different reasons. Her explanation is that her amendment removes a civil servant from the membership of the council while providing for him or her to continue to have an observer role on the council. That is the core to the changes she will make. I shall not go further because the noble Baroness will put those reasons on the record. So, although that may be her stated reason, I hope that she will go on to say that it has the added benefit of making it even more certain that the majority of the people voting on SGC will be judicial. I beg to move.

Lord Ackner: My Lords, as I submitted previously to your Lordships' House, the sentencing guidelines situation has been grossly over-complicated. For the past two decades, sentencing guidelines have been provided by the Court of Appeal, cases have been collected and the opportunity taken to announce the principle. During the past two decades, almost, I have referred on several occasions to guidelines to establish a principle. They have never been criticised, until this day, when the guidelines that the Lord Chief Justice produced on burglary were not so much misread as not read properly at all by the press. They had to be corrected. Some time ago, I had cause to have placed in the Library a collection of guideline judgments so that they could be read.

Why the change? Change has already taken place, and judges have not resisted sensible change. Two or three years ago an Act set up the Sentencing Advisory Panel, which consisted of people of varying professional experience, with a professor presiding and members including the noble Lord, Lord Chan, and magistrates. The panel went to enormous trouble, because the legislation provided that sentencing guidelines were not to be enunciated without first consulting it, or, that if it produced sentencing guideline proposals, they had to be properly taken into consideration and, if not followed, reasons provided.

As a result, the panel produced 10 guideline proposals over three years. It invited the public to represent in various ways their views and then produced a report. On every occasion, the Court of Appeal has accepted what the panel has suggested. The

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latest guidelines produced, which related to sentencing for murder, were particularly interesting, but I shall reserve any detailed comment on them until Clause 19.

We have moved on. The system has become more transparent and is open to public criticism and views. So why change it? What is the point of having a Sentencing Guidelines Council consisting partly of sentencers and partly of the public, when the public are already represented on the panel? If you want a policeman or a civil servant—that is one of the proposals in the sentencing guidelines—you can put him or her on the panel. When the panel was asked its view on the proposal, it demurred and said, "This is a duplication of our effort. What is the point of having a Sentencing Guidelines Council not composed solely of sentencers but with members who should be on our panel? The duplication may not be satisfactory and may not do the work as well as we do it, so what on earth is the point?".

The Lord Chief Justice very liberally accepted that the Court of Appeal should no longer issue guidelines and that they should be issued by the Sentencing Guidelines Council after proper consultation with the panel. But he said that sentencing was a judicial function and that therefore sentencers should sit on the council; they should not be diluted. It is terribly important that the guidelines are respected and that people have confidence in them. However, why should people have confidence in such a mixed organisation, to which there could be significant political input?

That is why I propose that we accept the unnecessary interference in what has gone on in the past, with the panel's position well endorsed by legislation, but purely on the basis that the Sentencing Guidelines Council consists of sentencers, including one or more magistrates. It should not include—I do not say this disrespectfully—odds and ends but laymen or laywomen. Accordingly, I have tabled an amendment to remove references to anybody other than judicial members.

It should not be overlooked that our Home Secretary, such is his ambition, will seek power to add to or detract from the membership of the Sentencing Guidelines Council. That merely lends support to the useful phrase coined by the noble Lord, Lord Windlesham, that what is behind these proposals is sentencing by ministerial decree. I would have none of it.

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