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Lord Renton: My Lords, the noble and learned Lord, Lord Ackner, has moved amendments to modify the powers and composition of the Sentencing Guidelines Council. Having listened to him with great respect, he has made out a case for leaving out altogether the statutory proposals for a Sentencing Guidelines Council.

It is a very strange situation that the Lord Chief Justice presides over the Court of Appeal, which hears appeals on sentencing in criminal cases, but will also be a fundamental member of the Sentencing Guidelines Council. Somehow he will have to persuade the Sentencing Guidelines Council and the Court of

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Appeal to reach the same sort of decisions. Presumably the Sentencing Guidelines Council is being created by statute to guide the Court of Appeal. That is a ridiculous situation, and I hope that at Third Reading we can leave out those clauses altogether.

6 p.m.

Lord Borrie: My Lords, I shall try to confine myself to the amendments, which do not include the broader ideas discussed by the noble Lord, Lord Renton. I do not know the precise balance that there should be between judicial members and non-judicial members. However, there are amendments in front of us from the noble Baroness, Lady Anelay, and the Minister, who has not yet spoken. The amendments represent changes since Committee.

I feel strongly that the council should contain some—a minority—of non-judicial members. However, as the clause provides, that minority should be people with experience of various aspects of criminal justice—including the police, the prosecution, the defence and those involved in the welfare of victims. My noble friend the Minister who has not yet spoken on this matter today has none the less said that two of the five non-judicial members already provided for should be the Director of Public Prosecutions and the Commissioner of Correctional Services. Some of us may agree that both of those people are appropriate non-judicial members.

We have heard today and in Committee the views of the noble and learned Lord the Lord Chief Justice. He has given us the benefit of his more detailed opinion, which is available in the Library. The noble Baroness, Lady Anelay, said last time in Committee that the Lord Chief Justice had said that, "to carry real clout" the membership should be confined to the judiciary. However, the noble Baroness also said in Committee that, while the Lord Chief Justice speaks for the judiciary, it is most important that the Sentencing Guidelines Council should command the confidence of the general public as well as the judiciary. Why should the judiciary have good reason for lacking confidence in a body in which a minority contains people from the groups that I have described that have experience of the criminal law?

I took the opportunity in Committee of referring to the Parole Board as it has been called for some years, including 20 years ago when I happened to be a member. It has an important role in sentencing. It actually indicates the sentence that will be served by this or that individual prisoner. It has always contained a mixed membership and does not even have a majority of judges. I see great value in having a diverse range of skills in the council and I do not think, with due respect to the noble and learned Lord, Lord Ackner, that the judiciary has an exclusive monopoly on wisdom in matters of sentencing.

Lord Ackner: My Lords, I thank the noble Lord for letting me intervene, but I have never suggested that it has. Had that been the case, judges would have resisted the panel. They would have resisted having to listen to

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what the panel said and, if they did not agree, having to give their reasons. They would have resisted the suggestion that when they wanted to initiate guidance, they would have to consult the panel. All that the noble and learned Lord the Lord Chief Justice has said is that the Sentencing Advisory Council is performing a judicial function. It is deciding on the right sentence. To mix that up with lay views is asking for a lot of potential problems. In speeches on this Bill, there has been a clear indication that the public perception and reality with regard to sentences are often miles apart.

Lord Borrie: My Lords, I had finished the remarks that I was going to make when the noble and learned Lord intervened. I do not wish to say more because I would have to get into the debate that others quite reasonably want to get into about the role of the Sentencing Advisory Council as a whole. The noble and learned Lord, Lord Ackner, and the Lord Chief Justice have very strong views indeed on its very existence. We may then return to the controversy we had in Committee when I thought that the Minister, among many others, had taken the view that the ultimate sentence awarded in court when there is a conviction is undoubtedly in the discretion of the judge. There may be an advisory council and guidelines may be laid down in the Bill that will be an Act about minimum sentences and so forth, but the ultimate discretion is that of the judge. Neither these provisions nor any other interfere with that.

The Lord Bishop of Worcester: My Lords, I am not quite sure whether I am speaking or intervening in an intervention. However, I will speak and if I am wrong I will be stopped.

I have thought rather hard about this matter. I feel that I must support the amendment of the noble and learned Lord, Lord Ackner, as the only possible way of making the point that I wish to make, without totally agreeing with the form of argument that he adduced. I do not believe that there is anything wrong in principle with having a Sentencing Guidelines Council that draws on a wider range of expertise, provided that its function is entirely advisory. What disturbs me about the proposal that we have before us is that it bears too many marks of the sociological/political context—if I may put it that way—from which this Bill has come. It does that as soon as one inspects the composition of the non-judicial members of the proposed body.

There are many people who could bring wisdom to sentencing. For example, some people who have been imprisoned would have a great deal of wisdom to bring to what sentencing should be. I spent this morning with a group of prison chaplains in the Kent, Sussex and Surrey area. There was a huge amount of wisdom in that room about the effect that sentences actually have on people, and that wisdom is worth having. There are people who might just be included in the list, although I am not sure, who are probation officers who have spent a lifetime in this work and have a great deal to give. I can think of people who have worked for the Howard League or the Prison Reform Trust who have thought enormously hard about this matter. I can

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think of representatives of the Children's Society, whose wisdom and understanding have already figured so strongly in the debates that we have had on this Bill. They have enormous wisdom to give to the issue of sentencing.

I am not sure whether the best way to draw on such wisdom is to have representative figures on the Sentencing Guidelines Council, but their presence would bring wisdom at least as well as the people in the current list. However, when we look at the current list, it is difficult not to remember the comment of the Secretary of State that he wanted judges who inhabited the same real world as he inhabits. The list seems to contain people whom he regards as better representatives of that real world. I find that list alarming. I find it even more alarming that it is proposed that the DPP and the commissioner for correctional services are appropriate members of the council, when the list is not balanced by the presence of any categories of person representing a different view.

In those circumstances, how should I vote? The amendment in the name of the noble Baroness, Lady Anelay of St Johns, does not meet the case. Just increasing the number of judicial members does not balance the list of non-judicial members, if we accept that there should be such. Given the anxieties that I have about the proposal, I have no alternative other than to support the amendment tabled by the noble and learned Lord, Lord Ackner. That would put us in the position of having to rely for advice to sentencers on the more informal arrangements of public debate, articles, letters and so forth, which allow the widest range of people to bring their wisdom to bear on the matter.

Lord Ackner: My Lords, the right reverend Prelate has overlooked the existence of the sentencing panel.

Lord Bassam of Brighton: My Lords, I remind noble Lords that we are at Report stage. There should not be additional interventions, once noble Lords have sat down for the first time, having made their initial contribution.

Lord Ackner: My Lords, I appreciate that, but one is entitled to ask questions for clarification.

The right reverend Prelate said that he was limited on his approach and on mine to relying on public debate. That is factually wrong. He has overlooked the panel, which goes anywhere that it thinks appropriate, including prisons, to get the wider view of the public.

The Lord Bishop of Worcester: My Lords, I accept the noble and learned Lord's correction of what I said.

6.15 p.m.

Baroness Scotland of Asthal: My Lords, I am grateful for that. The noble and learned Lord, Lord Ackner, is right about the species—if I can put it that way—of persons referred to by the right reverend Prelate, and by that I mean the species of expertise represented by the panel. It is very much in evidence.

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I start by reassuring the noble Baroness, Lady Anelay of St Johns, that we intend to make sure that a majority of voting members of the council will be judicial. I will explain how that majority should be constructed and give our reasons for thinking that her three-to-one majority is not, perhaps, the best.

I say straight away to the noble and learned Lord, Lord Ackner, that by no means do we seek, in putting the provisions in the Bill, to criticise the guidelines that were issued by the Lord Chief Justice. Nor do we cast any aspersion on those guidelines. I agree with the noble and learned Lord that some of the comments that have been made about guidelines may not have been based on the experience of having read them. That, of course, is a matter of regret and concern to us all.

I also say to the noble and learned Lord that it is right to acknowledge that the senior judiciary has welcomed the council, even though there is concern about how the membership of the council is to be made up. The noble and learned Lord was right to highlight the fact that the judiciary has welcomed and participated in the change. That has been a good thing, and it is what one would have expected from the judiciary of this country, of whom we are justly proud.

The creation of the Sentencing Guidelines Council is a key provision. It will enable the judiciary, practitioners and Parliament to work together to improve the approach to sentencing. The Bill provides for a judicial majority on the council: the Lord Chief Justice, as chairman, with seven other judicial members drawn from each tier of court. I endorse the comments made by my noble friend Lord Borrie and am happy to give the detail of how the majority is to be made up.

There is also provision for five non-judicial members, who will together cover the whole spectrum of a criminal case from detection of the offender to completion of the sentence. That reflects the fact that sentencing does not take place in isolation. It is part of the process of dealing effectively with crime—an important part, but still a part.

Concerns have been raised regarding the possible appointment of the commissioner for correctional services as the person who would bring to the council experience of sentencing policy and the administration of sentences. We were pleased to note the welcome for that level of expertise and for the standing that that person has.

The issue here has been the role and responsibilities of a mainstream civil servant and the possible conflict between responsibility to Ministers and responsibility as a member of an independent body. We have reflected on those concerns with great care. I believe that it will be of great benefit to the council to have direct access to a person who can bring current and direct knowledge of such areas to its deliberations. However, I also see the force in the arguments regarding the possible conflict of interests. Therefore, we propose that the person bringing that experience should be an observer with a right to attend and speak at the meetings of the council, rather than a member

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of the council. That means that the numbers are going down, just as the noble Baroness, Lady Anelay of St Johns, would like. I see her smiling her pleasure at that.

The clause authorising the appointment of a civil servant can therefore be removed, with a safeguard to ensure that it will be possible for the Home Secretary to appoint the Director of Public Prosecutions as the person with experience of criminal prosecution. Technically, the director is a civil servant, though that does not raise the same concerns. On the previous occasion, the noble Lord, Lord Carlisle of Bucklow, expressed his surprise that anyone could even describe the DPP in such terms. That demonstrates how independent and objective that role has always been and how diligently those who serve us in that office have discharged their duties.

It is important that the council provides a good balance between judicial and non-judicial members. The council must also be a manageable size. Although I am happy to confirm to the noble Baroness that judicial members will be in the majority, we do not think that it is desirable or necessary to have, as she suggests—I understand why she plucked the figure—a judicial majority of three to one. The council will be a partnership, bringing together wide experience and authority. It is unlikely that it will ever need to vote on issues or that there will be anything other than broad consensus in the management of its affairs. Extensive consultation will precede its decisions, and the judiciary will be involved in that.

We expect the council to be active and innovative. There must be a proper balance between members, demonstrating the importance of each member's contribution to the work of the council. We recognise that there should be a judicial majority. Our proposals will provide a ratio of 2:1. But it is also important that the council benefits fully from the wider experience provided through the non-judicial members. The current proposal provides the best balance.

I turn now to the amendment proposed by the noble and learned Lord, Lord Ackner, supported forcefully and fully by the noble Lord, Lord Renton, and, for different reasons, supported by the right reverend Prelate the Bishop of Worcester. The noble and learned Lord proposes that councils should consist only of judicial members. I resist that proposal.

The Government fully recognise the particular expertise in devising guidelines that judges and magistrates have built up over many years. We agree that the judiciary has a crucial role to play in creating guidelines. That is why we have ensured that judicial members are in the majority on the council and why we have provided that the council should be responsible for making the guidelines rather than Parliament.

However, the range of legitimate interest in the level of sentencing and the approach to different offences is much wider than the judiciary. The whole of society has an interest in sentencing: criminal law is the state acting on behalf of society as a whole. The Government's proposal enables that wider interest to be brought in, but still leaves the final decision with a

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body of very high calibre with a judicial majority. The noble and learned Lord will know that when the Bill went to the other place for consideration, it was the Government's view that what the noble and learned Lord outlined should be the case. That was our first position.

In the other place there was good, proper, active scrutiny and debate. Many came forward; many thought that this was a lost opportunity; and many thought that we could improve and enhance the quality of the sentencing councils by broadening them. My noble friend Lord Borrie was right when he gave the example of the Parole Board, which had enriched its board by drawing together, as it did, a wider spectrum. We did what we have done throughout the Bill: we listened. When others have spoken powerfully, we have demonstrated that we are prepared not only to hear them but also to act on their good advice and seize the opportunity to introduce a provision which is the best that can be created. We do not listen only to ourselves and think that we are the font of all wisdom.

We need to remember the context in which we are discussing sentencing. One of the tragedies is that, as never before, there is real public disquiet about the criminal justice system. We know that recorded levels of confidence in the judiciary and in sentencing are low. I agree with the noble Lord that on many occasions it is because people do not understand the process. When they understand the process, they usually agree with the result. Throughout the Bill, we are trying to make that purpose clear to all. Confidence should not be reserved only to those of us who know intimately the workings of the legal system, know intimately how fair and just our judges are, and know intimately how hard they strive to do justice. It should be genuinely widely held.

Those of us who know judges and magistrates well are aware how able and committed they are. However, these are issues which must be faced. We cannot just ignore the fact that public confidence is low. We need to ensure that we build a stronger system that protects the independence of a judge or magistrate to make the right decision in the case before them. It should also provide a framework that gives confidence that the general level of sentencing accords with a good understanding of the causes of crime, the response to crime and the impact of different sentences.

Everyone appointed to the council will be of the highest calibre, highly regarded, independent minded and able to contribute effectively to the production of guidelines of the highest quality that will justifiably command the respect not only of the judiciary and of practitioners but also of the wider public and of Parliament.

The right reverend Prelate the Bishop of Worcester need have no concern that we believe that wisdom is the sole province of the judiciary. We do not believe that. He need have no concern that we do not believe that others can make a valid contribution. All those to whom he referred are brought in, listened to, worked with, consulted and relied upon on the panel. The panel has worked well. In Committee, we heard from

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the noble Lord, Lord Chan, who sits on that panel. He spoke of the high quality of their work and the way in which they interact with the judiciary, which is a matter for congratulation. In moving the government amendments, I invite the noble and learned Lord, Lord Ackner, and the noble Baroness, Lady Anelay, to withdraw their amendments.

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