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Lord Donaldson of Lymington: My Lords, I support the noble Lord, Lord Thomas of Gresford, in everything that he says, and I shall not repeat it. However, I add one other point. One trouble with primary legislation is that it can never keep up with the times. At the moment—and

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here I show my bi-partisanship—starting with Michael Howard as Home Secretary and carrying on with the present Home Secretary, we are on a sort of wave of increased custodial sentences. That will not go on; there will be a reversal of the wave, and we will then be hung up on a statutory provision that there is no time to amend. This is not the place for a statutory provision—the Sentencing Guidelines Council is the place for that.

Baroness Kennedy of The Shaws: My Lords, I pick up on the refrain of the noble and learned Lord, Lord Donaldson, that this process has happened in the past decade. We have seen the politicisation of criminal justice and we have seen law and order become an auction. It is the source of regret to me tonight that that auction is displayed by the reticence of those on the Opposition Benches. For fear that the public might see a party in any kind of retreat from parts of the Bill as being soft on crime, people are not standing up to be counted. That is regrettable.

The noble and learned Lord, Lord Donaldson, said that these things go in waves. My concern is that the wave may ride for a very long time yet. When one has politicised criminal justice and law and order, one ends up having a ratcheting up of sentencing because each party wants to be seen as tougher than the other. I know that there is not an awful lot of space to the right of Mr Blunkett, but I am sure that efforts will be made to find that space.

I am worried that we shall see not a swing of the pendulum away from heavier and heavier sentencing, but more and more of it. My regret about that policy is that we know that it does not work. When my noble friend on my Front Bench says, "Every time I speak to a member of the public, they tell me that this is what they want", I say to her, to her noble friends on this Front Bench and to those in the other place that the role of Government is to lead. It is not simply to listen to what the public says, especially on sentencing, but to say, "Hold on a minute, let's have more discussion on the subject and see whether it's really what you want". I have said in this House a number of times that what politicians should do is make the political weather. That is not done by polling or soundbites or by going to the public and asking, "How does this go with you?"—because then one hears precisely what is reflected in the Bill. We in these Houses should do better than that.

I regret considerably that we are going down this road, and I stand with the noble and learned Lord, Lord Ackner, in expressing my concern that we are seeing interference with judicial discretion. As a follow-on from that, we shall see more and more over-crowding in our prisons and more punitive measures. That should be a source of shame to us all, on all sides of the House.

6 p.m.

Lord Mayhew of Twysden: My Lords, I should like to ask the Minister to deal with one short question when she replies. She knows very well, of course—we have all been reminded of it over the course of this Bill—that the Attorney-General has a jurisdiction to ask the Court of Appeal to review a sentence if he

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considers it to be unduly lenient. Let us take a hypothetical case in which a sentence of, say, one or two years has been passed whereas the starting point under the provisions of the Bill would be 15 years. Would it or would it not be open to the Attorney-General to invite the Court of Appeal to take account of and rely on the 15 years as the starting point as evidence that, in an appropriate case, the shorter sentence must have been unduly lenient? If so, then surely it cannot be denied that that would be to impose a fetter on the discretion of the judge.

Lord Carlisle of Bucklow: My Lords, I have already said, and I do not propose to repeat, why I do not like Schedule 19. I listened carefully to what the Minister said when she accepted that this was the replacement of judicial guidelines by statutory guidelines. Of course I accept that any penalties imposed by the court must be within a framework approved by Parliament. To some extent, she might argue that by setting the maximum sentence for any offence, we are clearly establishing those parameters and indicating seriousness. However, my objection to the clause is based on its excessive detail and its content. As has been said, the statutory guidelines provided in the schedule would in effect almost double the length of sentences currently being passed and served. One must ask whether the Government have considered the ratcheting effect of their proposals.

As I have said, I feel that the proposals are in some way self-contradictory. The schedule provides, for example, that there should be a 30-year starting point, I think, for the murder of a police officer. However, why should that provision deal only with police officers and not also with nurses in hospitals or anyone else? I do not believe that we can put guidelines of this nature into statute although I accept that we can establish a statutory framework within which the courts should work and indicate their own guidelines.

I ask the Minister to answer one specific question when she replies. In the previous debate, she said that she hoped that, as a result of the Government's actions, confidence which had diminished in the judiciary could be restored. Can she give any examples of how confidence in the penalties imposed in murder cases of recent years have diminished the standing of the judiciary? Is she saying that the stated periods of imprisonment within the mandatory sentences are such that the public have lost their confidence in the judiciary? Is that why the Government are doubling the sentences? I think that we are entitled to know that. I think that we are entitled to know what effect the Government think these types of maxima will have on sentencing policy generally.

Baroness Anelay of St Johns: My Lords, I think that it is right on this significant amendment, moved by the noble and learned Lord, Lord Ackner, that I should give a short resume of why we on these Benches are not able to follow the noble and learned Lord into the Content Lobby. Noble Lords who have been with us through the thick and thin—it has mostly been very thick in content and thin in numbers on this Bill—will

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appreciate that I have already given a resume on no fewer than seven previous occasions. I shall try not to bore the House once more after this one.

When we looked at the provisions of Schedule 19 we shared very much the deep concerns of the noble and learned Lord with regard to all the points that he raises. However, we also had to look with care at them because we supported the Government in every respect on the fact that the Home Secretary had to find a proper way of responding to the Anderson judgment. When in government my party always supported the view that, in the old death penalty cases, if I may call them that, it was appropriate for the Home Secretary to have the right to continue the imprisonment of those who had committed those offences. Otherwise, because of the years that they had been assigned, they might be released.

So when the Government introduced these measures—most of which were brought forward perforce on Report; the Government had no ability to do so in Committee—we had to respond very rapidly. My right honourable and honourable friends in another place had only about 48 hours to respond to these proposals. At that stage, they were prepared to support the Government to a considerable extent while saying that children should not be included within the provisions. However, the more they examined the proposals in detail, the more concerned they became. Consequently, as noble Lords will be aware, at Second Reading I announced that my party had made what I considered to be, and still consider to be, a very bold decision—one that would indeed have enabled the Government to brief the tabloid press that we had gone soft on crime, an allegation that would have been totally false, but one that would have been easy to present.

We were planning substantially to amend Schedule 19, but to do so as part of a very wide package of changes to these provisions. The package was carefully balanced. It was balanced not only with restrictions on the authority of the Secretary of State, but carefully balanced with a measure—a very small and modest measure, we thought—of parliamentary scrutiny. However, that proposal did not find approval within this House.

We could not accept part of the loaf. It had to be all of it because the other half was as vital as that which the noble and learned Lord has put forward so eloquently today. Therefore, we cannot accept the noble and learned Lord's amendment either today or, if he brings back similar amendments on this matter, at Third Reading. However, that does not mean that we are content with the avenue down which the Government are taking us and all in this country.

Baroness Scotland of Asthal: My Lords, I have listened to everything that has been said on Report, as I listened with great care to everything that was said in Committee. I do not propose to weary the House with all the explanations and reasons that I have given on what feels to be innumerable occasions in Committee, at Second Reading and now on Report. However, I should like to address some of the specific issues raised.

I hear what the noble and learned Lord, Lord Ackner, says about this being an extraordinary distortion as a result of a distorted approach. I say without

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equivocation that I disagree with him. We have previously explained very fully how we planned to respond to the Anderson case and the history that brought us to that point. I shall not repeat that now. I also wish to say as clearly as I can that the noble and learned Lord's comments about my right honourable friend are not well founded. They are also unfortunate. As I know that the noble and learned Lord always expresses himself with judicious and appropriate care, it is always a surprise, if not a pain, to hear him speak with such lack of temperance.

The reality is that something has to be done to give voice to the fact that Parliament has been enjoined on behalf of the public to decide whether there should be a framework within which the courts should operate when dealing with offences which used to be capital in nature. We no longer have the death penalty but it is right that these offences are still dealt with with the utmost seriousness because of their fatal nature.

I remind the House that my noble friend Lady Kennedy is indeed a very dear friend to my party. I do not disagree with her when she says that the Government should take a lead on this matter. We are taking a lead in this Bill. The provisions in Schedule 19 are not the only provisions in the Bill. When we isolate this debate we should not expunge from our minds all the other sentencing provisions with which we have laboured during the passage of the Bill: cautioning, sentencing plus, sentencing minus, therapy, treatment, opportunities for early release and continuation of community support so that sentences are real. All of that feeds into the matter that we are discussing. I say with due respect to my noble friend that this is not a matter of shame. I hear what she says in relation to Schedule 19. What we have done in the Bill is to try to bring together a holistic response to sentencing. That should be a matter of some considerable pride as it is an aspiration that has been expressed for a long time and is based on the empirical data that we have. It was endorsed by Auld, Halliday and, before them, by Glidewell. Therefore, it is not something about which we should feel shy.

The noble and learned Lord, Lord Mayhew, asked about the Attorney-General's ability to review. That remains. The Attorney-General will have to look—as he always looks—to determine whether the court went so outside that which was proper that he should seek to ask the Court of Appeal to interfere with the exercise of a judge's judgment and discretion. Nothing has changed in that regard. What we have, however, is an ability for the judge in passing the sentence to explain with clarity and certainty the basis on which he made that judgment.

I hear, too, what the noble Lord, Lord Thomas of Gresford, said about judges and the way in which they exercise their discretion. I hope that I have made clear that the best of our judges seek to explain their judgments with clarity and to explain the mitigating and aggravating features that they have taken into account. However, I have to say—we had better not persuade ourselves away from the truth—that that is by no means universal. We want to set a benchmark which says, "This is what every individual can expect".

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I listened with great care to what the noble Lord, Lord Thomas of Gresford, said. I hope that when he reads his words tomorrow in Hansard, he will not feel a degree of embarrassment at the tone he adopted towards victims and witnesses. Many victims and witnesses have a perfect ability to understand matters. The noble Lord should know—I am glad that he recognises it—that what most people want is a proper and full explanation. They do not always get it. The noble Lord discussed the history of the matter and rightly said that in the past two years practice has changed. It is right that practice will change even further. New rights and new responsibilities will be put in place, and if we get our way on the victims and witnesses strategy, still more will be done. However, what we set out here is a framework, and that is what we have. If we look at the cases—

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