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Baroness Anelay of St Johns: My Lords, I may be able to help the House. There are always occasions when we find it inconvenient to move business. The House has said that it wants to go to as close to 10 o'clock or thereafter as is appropriate. The noble and learned Lord, Lord Ackner, was made aware of that.

On these Benches, we consulted earlier and said that we were prepared to keep to the pre-arranged agreement, of which the noble and learned Lord, Lord Ackner, was aware, that we would go to 10 o'clock. That is appropriate.

Lord Bassam of Brighton: My Lords, the noble Baroness speaks with great wisdom. I agree with what

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she says. The noble and learned Lord, Lord Ackner, made it plain before the supper break that he would come back to the issue at Third Reading. He is perfectly entitled to do that. It is our intention to press on until 10 o'clock.

[Amendment No. 221 not moved.]

Clause 247 [Determination of minimum term in relation to mandatory life sentence]:

[Amendments Nos. 222 and 223 not moved.]

Baroness Anelay of St Johns moved Amendment No. 224:

    Page 142, line 31, at end insert—

"( ) Before making an order under subsection (6), the Secretary of State shall consult the Sentencing Guidelines Council."

The noble Baroness said: My Lords, that took me by surprise because I fully expected the noble Lord, Lord Thomas of Gresford, to move Amendments Nos. 222 and 223 on behalf of the noble and learned Lord, Lord Ackner, because they also stand in his name.

Lord Thomas of Gresford: My Lords, I would have been pleased to have done that, but having regard to the communication I received a moment ago, I felt that it was not appropriate to do so.

Baroness Anelay of St Johns: My Lords, I was concerned that the noble Lord, Lord Thomas of Gresford, should be able to move amendments to which he has added his own name.

Amendment No. 224 relates to the order-making power the Government propose to take to alter the arrangements for the determination of the minimum term to be served by murderers as set out in Schedule 19. Under Clause 247(6), the Secretary of State has an unfettered power to amend the schedule by order, subject to the affirmative resolution procedure.

The whole issue of Schedule 19 is subject to great controversy and no doubt at Third Reading we shall return to it with serious and powerful speeches, I am sure, from the noble Lord, Lord Thomas of Gresford, and others on their objections to Schedule 19 as it stands. Noble Lords will be aware that in Committee I put forward a whole series of amendments to try to ameliorate the operation of the schedule, but since part of the package was dismissed by the House, that series could not return. I therefore sought to approach Schedule 19 in a different way.

In Committee, the noble Lord, Lord Borrie, made a powerful point when he remarked that once Parliament had passed Schedule 19,

    "It could then be amended at any point by the Secretary of State; therefore Parliament does not have the control. The noble Lord said that he was not suggesting that Parliament should have that degree of control over the particular differentiations between one type of murder and another, but certainly that the Secretary of State should not".—[Official Report, 14/10/03; col. 864.]

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In his memorandum on the Bill, the noble and learned Lord the Lord Chief Justice stated at paragraph 35 that:

    "If the Home Secretary were to take legislative authority to set the guidelines himself, this would almost certainly be inconsistent with the law as it has now been developed by the courts. The question that therefore arises is: is it appropriate for him indirectly to do what he cannot do directly?".

It is our view that if the Secretary of State's power to amend the schedule is to be retained in the Bill, the Sentencing Guidelines Council ought at least to be involved in the process and in the drawing up of the Secretary of State's proposals before they are put before Parliament in an affirmative order. The amendment would require the Secretary of State to consult the council before making an order that amended what is now set out in Schedule 19.

The Government have said much about how the new Sentencing Guidelines Council is intended to restore public confidence, and earlier this evening the Minister repeated those assurances. The Government have stated that they intend to bring together experience in sentencing from across the criminal justice system and yet, under the Bill, the new council will be excluded completely from the arrangements for determining amendments to the sentencing framework in the most serious crime of all, that of murder.

My right honourable and honourable friends in another place made the point very forcefully that it seems extraordinary that we have a controversial package of sentences in Schedule 19 and, under the same Bill, the Sentencing Guidelines Council is to be established, and yet the Government appear not to have confidence in their own creature, the Sentencing Guidelines Council, to put all the new guidelines for murder through it first.

We sought originally, of course, that the new sentences for murder should go through the SGC. We have had to resile from that position. I said earlier that I do not like resiling—and I do not—but on that occasion I could not get the support of the House. My first preference remains but, alas, it is not to happen and on this occasion I have gone back to a lesser position.

Originally I considered putting my name to the amendment of the noble and learned Lord, Lord Ackner, which seeks to knock out the Secretary of State's power altogether. Looking with embarrassment at the noble Lord, Lord Thomas of Gresford, I must admit that that is the more honourable procedure. However, because I am not able to take my original position again, I have to do what I consider to be almost unacceptable to myself—I am having a hard time today—and say that at the very least the Government are honour bound to put the proposals through the SGC first. I beg to move.

Lord Thomas of Gresford: My Lords, I am very sorry that the noble Baroness, Lady Anelay, feels embarrassed for embarrassing me. I have no doubt that the noble and learned Lord, Lord Ackner, will wish to return at Third Reading to his Amendments

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Nos. 222 and 223, which we will support. I am grateful to hear an indication of support from the noble Baroness.

We shall come in due course to Amendment No. 227—perhaps next week—which seeks to leave out Schedule 19 altogether. The noble Baroness is not herself satisfied with her amendment—it does not give her what she seeks—and we would be very unhappy if we were to end up with something as anodyne as Amendment No. 224.

However, there are dark forces at work, which I do not fully understand, and we will sort out these issues outside the Chamber, as I was told on a previous occasion—but not in respect of the noble Baroness, Lady Anelay.

The Earl of Listowel: My Lords, I listened with great interest to members of the Sentencing Advisory Panel who visited the House of Lords a month or so ago. What most struck me about that meeting was the sense that those panellists felt that they were being sidelined. I am afraid, from listening to the brief debate today, it appears that the new Sentencing Guidelines Council is already being sidelined. I may have misunderstood the debate, but that is my impression.

Baroness Scotland of Asthal: My Lords, I disassociate myself—as I know would the noble Lord, Lord Dholakia—from the dark forces at work and say to the noble Baroness, Lady Anelay, that virtue will always have its reward.

I was not going to trespass on Amendment No. 223 because it has not been moved, but I have heard what the noble Lord, Lord Thomas of Gresford, has said. Confident in the knowledge that the noble and learned Lord, Lord Ackner, will assiduously read his Hansard, I will say a word or two about Amendment No. 223 so that we can better appreciate the gift that is about to be bestowed on Amendment No. 224. I hope that after I have done that, the noble Lord, Lord Thomas of Gresford, will better appreciate the value and enormity of Amendment No. 224.

Amendment No. 223 would remove the power of the Secretary of State to amend by order the principles for setting the minimum term of those sentenced to mandatory life, as detailed in Schedule 19, which would have been the noble Baroness's preferred option.

Amendment No. 224 places a duty on the Secretary of State to consult with the Sentencing Guidelines Council before amending by order the principles detailed in Schedule 19.

We have provided the power because we cannot foresee all the changing circumstances or social developments which may mean that the principles will require amendment at some stage. We have no current plans for use of the power, but it is intended to deal with changes to details of the schedule rather than its basic tenets.

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I understand that noble Lords fear that the order-making power may be used. In particular, if I understood the thrust of the Committee debate and the brief comments made in this short debate this evening, there is a fear that a future Secretary of State may wish to amend Schedule 19 so as to provide less flexibility in individual cases. We intend no such thing. We are very aware that the framework must allow flexibility to deal with the wide range of circumstances giving rise to murder. It has been drafted with that in mind.

As I explained to the House in Committee, the offence of murder is the most serious known to our criminal law, and the public rightly expect the authorities to ensure that the arrangements for sentencing for the offence afford adequate punishment for the guilty and adequate public protection. The order-making power is a logical extension of the framework. As I have also said before, the power is subject to the affirmative resolution procedure. I believe that this House would have no hesitation whatever in rejecting any unacceptable or inappropriate use of the power. The beauty of the affirmative resolution procedure is that you either take it or you reject it. That puts pressure on both sides to behave with propriety and reasonableness or suffer the inevitable consequence.

I now turn to Amendment No. 224, which proposes that the Secretary of State would have a duty to consult the Sentencing Guidelines Council before amending Schedule 19 by order. I say to the noble Earl, Lord Listowel, that we have no intention of sidelining the council; we understand the anxiety that may be expressed by the panel, because all and any change is always unsettling. People always feel unsure until they settle down with the new arrangement. That is totally understandable, even if unjustified.

While, as I have explained, we defend the power of the Secretary of State to amend by order the principles contained within Schedule 19, we recognise the concerns that have been expressed in debate in this House. We hope it will do something to allay those concerns if we accept this amendment. We are grateful for this sensible and helpful amendment and will be more than happy to undertake consultation with the Sentencing Guidelines Council, should amendments to these principles be suggested at a future date. I propose, therefore, that this amendment, tabled by the noble Baroness, should be accepted without further drafting or amendment.

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