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The Government believe that these functions are an important development. The Gage working group identified a key role for the council in making these independent assessments to improve clarity and understanding about sentencing and to assist the Government in their planning to meet the demand for prison places, probation and youth justice services.
We believe that an independent scrutiny of the impact of sentencing guidelines and of government policies and legislation is an important development in the way we deal with penal policy. It is a role designed to increase transparency around the impact of changes in criminal justice policy and legislation.
On Monday when we considered whether the council needs statutory purposes, the noble and learned Baroness, Lady Butler-Sloss, suggested that we might not need Clauses 113 to 115. With the greatest respect to her, we disagree. We believe that the new duties are so important that the Bill should spell out exactly what is required and avoid any confusion between the respective roles of the council, government and Parliament.
Amendment 190 of the noble and learned Lord, Lord Lloyd of Berwick, supported by the noble Lord, Lord Henley, and the noble and learned Baroness, Lady Butler-Sloss, deals with the council's duty to monitor the operation of sentencing guidelines. The amendment seeks to ensure that the monitoring duty does not entitle the council to make comments on individual sentencing decisions. I understand the intent but we do not believe that this amendment is necessary, following changes already made to Clause 114 in the other place. The provisions of Clause 114 do not refer to individual sentencing decisions. They refer to the operation of guidelines and to the frequency with which courts depart from guidelines, not to the decisions in individual cases.
It is clear that the consideration of the legitimacy of a sentencing decision is for the Court of Appeal and not for the sentencing council. I have no doubt that the sentencing council, the majority of which will be made up of judicial members including members of the Court of Appeal, will have no difficulty in recognising the division of functions between monitoring the frequency of departures from guidelines and the legitimacy
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Amendment 191 was spoken to by the noble Earl and the noble and learned Baroness, Lady Butler-Sloss. It seeks toadd to Clause 114 an additional duty on the council to monitor the operation of, and comment on, the use of out-of-court disposals, such as penalty notices for disorder and conditional cautions. I cannot accept the amendment. Let me explain why. First, Clause 114 relates to the monitoring of "sentencing" guidelines. Out-of-court disposals are by their very nature not sentencing decisions. Indeed, penalty notices involve no admission or finding of guilt and fall outside the functions conferred by this Bill on the sentencing council. That is why they are not covered by sentencing guidelines.
Secondly, and with slightly more comfort to the noble Earl, I suggest that the clause is unnecessary. This is because Clause 117 already places a duty on the council to consider and report on non-sentencing factors, some of which are included in the Bill, which could have a significant effect on the resources needed to give effect to sentences imposed by the courts. Although this would be a matter for the council, I suggest that changes in the use of non-court diversions could be a factor and indeed are likely to be a factor that the council would wish to consider in its report under Clause 117.
On the amendments spoken to by the noble Baroness, Lady Linklater, I can, I hope, please her to some extent. Without making any promises, it seems to me worth looking again at the wording she objects to in Amendment 191ZE, and the parallel wording in Amendment 191ZG. Without making any promises at all, if the noble Baroness withdraws her amendments tonight, I am prepared to take them away and look at them again. It may be that we think that we have the best form of words already. However, she has persuaded me that it is worth looking at again.
9 pm
She has not persuaded me, alas, on Amendment 191ZF, which would convert the discretion conferred on the Justice Secretary to refer particular policies and legislation to the council into a duty to do so, so that he must refer any policy or legislation that could have a significant impact on resources. The committee will be only too aware of the volume of legislation that Parliament considers. Most legislative changes are unlikely to have a significant impact on correctional services. We have to ensure that the council is not overburdened in carrying out unnecessary assessments.
The discretion of the Justice Secretary to refer some policy and legislative proposals to the council is meant to allow this new duty for the council to be as practical as possible. That is why the Justice Secretary acts as a single point of reference for the whole of the Government and why he exercises his discretion only to refer policies and legislation that are likely, from the information he has, to have an impact on prison and probation resources.
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Government departments will continue to make impact assessments of policies throughout the policy development process. Those assessments will inform the Justice Secretary in deciding whether a policy is likely to merit reference to the council either because it will clearly have a significant impact or where those assessments have highlighted potential difficulties in making accurate assessments of what the impact will be.
I hope that it will reassure the noble Baroness if I also point out that there is nothing to stop the council reporting on policies and legislative changes under Clauses 116 and 117 when it makes assessments of the impact of sentencing and non-sentencing factors.
Baroness Linklater of Butterstone: I thank the Minister for his replies. I am glad that he is able to accept one element. In the mean time, I will not be moving my amendments.
Lord Ramsbotham: On behalf of my noble and learned friend, who has been called away on important domestic business, I beg leave to withdraw the amendment.
Clause 115 : Promoting awareness
Baroness Linklater of Butterstone: Amendment 191ZA refers to a requirement for the council to promote matters relating to sentencing, thereby encouraging greater understanding as well as information; Amendment 191ZB refers to the inclusion of the words, "custodial and non-custodial" sentences. These are all logical extensions of our previous amendments, which I have spoken to at greater length earlier.
Amendment 191ZD and the provision that we wish to insert, which we originally discussed under the third purpose of the Bill, is outlined here in the briefing. The role of the council must not only be to promote awareness. The council should have a new duty to extend and develop its role to go beyond simply providing and publishing information when it sees fit. It should have a specific educational, as well as informative, role, which would involve active engagement with the public. This has real possibilities for closing the gap between the system and the public for the first time, and enormous potential for and importance in demystifying and communicating the realities of the sentencing process, as well as promoting the Government's desire for transparency. This is much more than just producing the occasional report which is likely to be destined to lie on a shelf. It involves reaching out to the community.
We have already discussed how the public are systemically misinformed about sentencing practices and believe that the courts are much more lenient than they actually are; that sentencers are too soft; that judges and magistrates are out of touch in their courtrooms; that courts are unlikely to use prison for
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The amendment offers a real opportunity to correct these misconceptions. For this to come from the council itself would carry with it the authority that it uniquely has about what it does and how it does it. This role is not totally unique, as other councils have held it in other parts of the world, but it would be quite new to us.
They key thing is the element of real engagement with the outside world, which could take a number of forms but would essentially involve representatives of the council-or council members themselves, which would be best of all-going out and about in the community and holding, for example, "Any Questions?"-style meetings, seminars or town hall events to communicate what they actually do, while getting feedback from the public. It would involve developing and implementing a public information and education strategy, targeting all sectors of the population and the mass media. It would, of course, be a challenging task, but commensurate with the importance and significance of the opportunity.
I have had the experience of organising a comparable series of meetings around England between sentencers and other agencies, notably the Probation Service and other providers of programmes for offenders. This was during the course of the Rethinking Crime and Punishment initiative that I chaired for seven years. All I can tell your Lordships is that the results were like an epiphany-in this case for both the judges and those that they met and talked to. It opened their eyes-and these were largely professionals-to the realities of what was available as disposal to them in their own patch on the one hand, and gave insights into how the judges thought and worked on the other. It offered a chance to discuss the issues of common concern and did much to promote understanding and confidence all around.
This proposal offers something not dissimilar for the wider public: to hear from sentencers and have their eyes opened. Another, similar programme now runs all over the country, organised by the Magistrates' Association, in which magistrates and probation officers do regular presentations to local groups about what they do inside and outside court, using real-life examples. It is called Local Crime, Community Sentence and, for the first time, the public get a real insight into what is being done in their name and the name of justice. They are also invited to participate in the decision-making exercises. This was also started as part of my Rethinking Crime and Punishment initiative; I promise Members of the Committee that there was and is a lot of rethinking. It is now so well established that there are regular award schemes among the different areas each year, run by the Magistrates' Association, for the best groups. It is really impressive.
I have expectations that the council members would be able to do something similar and equally well. It has now become a necessity. I do not need to explain to the Committee that, with public misunderstanding so extensive and confidence in the criminal justice system as low as it is, something urgently needs to be
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Lord Tunnicliffe: This group of amendments relates to the duty on the council to promote an awareness of matters relating to sentencing. Amendment 191ZAchanges the requirement on the council so that it "must" promote awareness rather than that it "may" do so. It is worth noting that there is a distinction between subsections (1) and (2) of Clause 115. The duty on the council in Clause 115(1) means the council "must" publish information on sentencing whereas Clause 115(2) provides that the council "may," promote awareness of matters relating to sentencing. This difference is deliberate. The first is a straightforward duty to publish sentencing data. The promotion of awareness is, however, a much more abstract concept and it is, in our view, less appropriate to tie an independent body to such a statutory duty.
The Government recognise the importance of promoting an awareness of sentencing issues. We also recognise, however, that the council's central function is to produce guidelines and to make assessments of the impacts of those guidelines. This will be a significant piece of work. The primary role of the council in setting guidelines means that there is-in fact, there has to be-a significant judicial membership of the council. We should not seek to compromise the independence of those judicial members by placing them in a position where they could be considered to be, or even perceived to be, undertaking a political role. I have in mind, for example, difficulties that might arise if the council's role is considered to be to promote one kind of sentence over another or to suggest to the public alternatives to custody. It seems to me sensible, therefore, to give the council some discretion as to how it promotes awareness, respecting the role of the Government in setting out penal policy and the resources assigned to correctional services, and the role of Parliament in setting the sentencing framework.
Amendment 191ZBamends the illustrative list of information the council may use to promote awareness to read "custodial and non-custodial sentences" rather than just "sentences". I do not think this is a necessary clarification for the council. Given its membership, I am sure it will appreciate that "sentences" includes the entire range of sentences from absolute discharges via fines and community orders to life imprisonment.
Finally, Amendment 191ZDmakes suggestions about how the council should go about promotingawareness, including programmes of education and making grants to bodies to carry out educational programmes. There are many ways in which the council may promote awareness, including the ways set out in this amendment, but the Government do not believe that it is necessary to spell these out as the council already has discretion to undertake these types of activities. The Government do not want to discourage the council from promoting an awareness of sentencing. We want the council to undertake this role-in fact, we actively encourage
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9.15 pm
Baroness Linklater of Butterstone: I thank the Minister for his reply which fills me with great disappointment. I feel that he has not understood and appreciated what I have been trying to suggest, and he has quite significantly misunderstood the complications about compromising council members.
I gave two illustrations of members of the judiciary and the magistracy engaging with the public and explaining their work. That was highly successful and completely non-political as the people concerned simply analysed their jobs. It was a quite different process from what the Minister imagines. I hope that he will read what I have said and follow up the evidence. We have lots of evidence with which to illustrate our case. There is no question of members of the council claiming that one sentence is preferable over another. Their role is educational, not political. It is entirely inadequate and inappropriate to construct or perceive it as anything other than that.
I understand the objections to the amendments concerning custodial and non-custodial sentences. The Government may have a point there. However, I definitely wish to consider the matter further because in the light of the experience of the past seven years I feel very strongly that what I am suggesting represents a real opportunity if it is looked at dispassionately. In the mean time, I beg leave to withdraw the amendment.
Amendments 191ZB to 191ZD not moved.
Clause 116 : Resources: effect of sentencing practice
Clause 118 : Duty to assess impact of policy and legislative proposals
Amendments 191ZF to 191ZK not moved.
Clauses 119 to 121 agreed.
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Clause 122 : Interpretation of this Chapter
191ZL: Clause 122, page 74, line 31, at end insert-
""the category range" has the meaning given by section 107(4)(b);"
Clause 122, as amended, agreed.
191A: After Clause 123, insert the following new Clause-
"Imprisonment and detention for public protection
(1) Sentences of imprisonment or detention for public protection under section 225 or 226 of the Criminal Justice Act 2003 (c. 4) ("indeterminate sentences") shall not be imposed after the date on which this Act is passed.
(2) Indeterminate sentences imposed before that date shall, after the expiration of three months from that date, be treated (without prejudice to earlier release) as having expired at the end of the maximum term of imprisonment or detention which could have been imposed in the absence of a power to impose indeterminate sentences."
Lord Goodhart: I am delighted that Amendment 191A is supported by the noble Lord, Lord Ramsbotham. I am quite surprised to find myself moving this amendment because my practice when I was a barrister was entirely in the civil field and not at all in the criminal field. However, I became interested in this point when, in September of last year, a report on indeterminate sentences was published by the Chief Inspector of Prisons and the Chief Inspector of Probation. It is one of the most devastating reports that I have ever read.
I do not know the Chief Inspector of Probation but I have known the Chief Inspector of Prisons, Dame Anne Owers, for many years. I worked with her for a number of years when she was the director of Justice and I was the chair of its executive committee. People generally have the highest regard for her. I have absolute confidence that anything she writes is the truth.
The Criminal Justice Act 2003 created the indeterminate sentence for public protection, or IPP. It also created a similar sentence of detention for public protection, or DPP, which could be imposed on young people under the age of 18. These two types of sentence are very similar and, for convenience, I will mainly refer to both as IPP. The purpose of an IPP is to enable the courts to override the normal sentencing powers and impose an unlimited or indeterminate sentence on criminals who have been convicted of serious offences-mainly violent or sexual ones-and who appear, or are thought, to pose significant risk of serious harm in the future.
Ninety-five different offences were included in the list of potentially serious offences, conviction for which could trigger an IPP. The IPP can, however, be applied only if the criminal has at least one previous conviction,
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IPPs came into effect in April 2005. By the end of 2006, more than 2,000 prisoners had received IPPs. By the end of 2007, 3,700 prisoners were IPP prisoners. It is estimated that 13 per cent-nearly 500-of these prisoners were by then beyond their minimum tariff. It is estimated that the number of IPP prisoners is increasing by 150 per month. As of February of this year, according to figures published by the Criminal Justice Alliance, there were more than 5,000 IPP prisoners. Some 1,487 were already beyond their minimum tariff, but as of four weeks earlier, only 47 of these prisoners had been released on licence. That amounts to only 3 per cent of those who had already passed beyond their tariff.
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