The Parliamentary Under-Secretary of State for Justice (Chris Philp)

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I beg to move,

That the Committee recommends that the Sentencing (Pre-consolidation Amendments) Bill [Lords] ought to be read a Second time.

As always, Dame Rosie, it is a great pleasure to serve under your chairmanship. The purpose of the Bill is to make amendments to existing sentencing legislation in order to facilitate the enactment of the Law Commission’s Sentencing Bill, which will consolidate the law governing sentencing procedure in England and Wales into a single Sentencing Code. Although the may be technical in nature, at its heart this legislation is about legal certainty. Hon. Members will agree that the law must be clear and accessible; unfortunately, it has become difficult to say that with any sincerity about the statute governing sentencing procedure. It is well known and understood in the legal community that this body of law has grown incredibly complex and disparate over the years, even for the most experienced practitioners. Sentencing legislation now runs to over 1,300 pages; judges and barristers alike say it is too complicated and needs to be consolidated. Indeed, it is noticeable in the Court of Appeal that quite a large number of appeals against sentences are successful not on the ground that the sentence is too lenient or too harsh, but on the ground that an error in law has been made, owing, we think, to the complexity of sentencing legislation. This Bill and the sentencing code that will follow it are designed to correct that uncertainty.

The sentencing code will bring together all the procedural provisions on which courts need to rely during the sentencing process, including those detailing the general legislative principles of sentencing and the types of sentence a sentencing court may impose. By bringing these provisions into one place and providing them with a coherent structure, the code will assist judges and legal professionals in identifying and applying sentencing procedural law. That will help to reduce the risk of error, appeals and delay in the sentencing process and improve the transparency of the process for the general public.

I cannot stress enough the significance of this to practitioners. The Law Commission was asked in 2014 to undertake a review, and the sentencing code, which has just been introduced in the House of Lords and which directly follows this Bill, was developed by the commission in the following years. The commission published its report in November 2018; it included a draft of this Bill and the separate Sentencing Bill, which will create the sentencing code. The main recommendation in the report was to enact both pieces of legislation, but before the Sentencing Bill can be enacted, technical changes to existing legislation are needed to facilitate the consolidation of sentencing procedure, and this Bill will make the necessary changes.

Chris Philp

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I am delighted that my hon. Friend feels that way. As we all know, he has a long and distinguished track record practising in the criminal courts, so he has direct experience of the current complexity. As he says, judges, academics, barristers and many others support the measures in the Bill before the Committee.

Chris Philp

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Like my hon. Friend the Member for Witney, the hon. Member for Hammersmith has had a long and distinguished career as a practitioner of of the law, and we are always interested in what he has to say. The idea of identifying common mistakes and drawing them to the judiciary’s attention is a very good one. Perhaps my officials can work with the Judicial College and the Judicial Office to see whether a list of common errors could be compiled and circulated to the judiciary. A couple of studies have been done; the hon. Gentleman referred to one of them, another was done in 2012 looking at Court of Appeal overturns of unlawful sentences, and another by the Criminal Appeal Office in 2018. I am sure we could draw on that work to identify whether there are common themes, and if there are, the idea of drawing them to judges’ attention is an extremely good one. We will investigate the hon. Gentleman’s idea with a view to taking it further.

There are two substantive clauses in the Bill because the Bill does two things. First, clause 1 provides a “clean sweep”. It takes the existing sentencing procedures and ensures that sentences passed are in accordance with the law applicable at the time of the offence. It is not uncommon for sentencing courts to deal with offenders who committed offences several years previously, when a different sentencing regime applied. There are many examples of when this happens, and if the sentencing provisions have changed between the time of the offence and the time of sentencing, it is not immediately clear which provisions apply. As we have heard from two practitioners on this Committee, it is no wonder that barristers and judges are keen on change.

The so-called clean sweep mechanism provided in clause 1 attempts to remedy the anomaly by removing the need for the sentencing court to identify and apply historical versions of sentencing law. Instead it will apply the sentencing law prevailing at the time of sentence rather than at the time of offence. As a result, when an offender is convicted after the start of the new sentencing code, sentencing procedural law as enacted in the code will apply, regardless of when the offence was committed. However, from a common law and human rights point of view—an article 7 point of view—it is important to provide exceptions, to ensure that offenders sentenced under the sentencing code are not subject to a harsher penalty than they would have been had the sentencing law at the time of the offence applied. Although current sentencing law will apply, there is an exception if the minimum sentence or the maximum sentence has increased, to make sure that a harsher penalty is not applied. That respects an important common law principle, as well as an article 7 human right.

Chris Philp

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The hon. Lady makes a good point. The aim is to simplify, yet we have these exceptions. A balance has to be struck. We cannot, as responsible legislators, do anything that violates the long-established common law right she refers to, or breaches human rights. We want to keep it as simple as possible. It is worth bearing in mind that sentencing law sets generally the maximum and in some cases the minimum sentences, but it is always up to the independent judiciary to decide exactly what sentence they hand down. I take the hon. Lady’s point about the exceptions, though. I hope we have enunciated those comprehensively, particularly in schedule 1 to the Bill, and that we will not have to add to them as rightly warns against.

The second substantive provision, clause 2, provides for various pre-consolidation amendments, which are listed in schedule 2. They are almost entirely highly technical in nature. They are explained in detail in the explanatory notes, but essentially they tidy up and correct small historical anomalies before the sentencing code is enacted. I will give one example to illustrate:references in schedule 9 to the Criminal Justice Act 2003 to now repealed petty sessions districts in Northern Ireland are replaced with references to their replacements, administrative court divisions. That is the sort of technical amendment we are making via schedule 2. There is a list in the explanatory notes that we can examine in more detail during the Committee stage of the Bill, if required.

Let me be clear: everything we are doing, both in this Bill and in the sentencing code that will follow, is essentially about clarifying and simplifying. In none of these provisions are we changing substantive sentencing law. It is a simplification exercise. Nothing is being changed in the way that sentencing policy operates. It is simply a clarification exercise, which is supported by the judiciary, barristers and academics. It has been scrutinised at some length in the other place, which has among its Members some very distinguished former judges, and it is the culmination of four or five years’ work by the Law Commission. I thank the commission for the extraordinary work it has done, especially the outgoing criminal law commissioner, David Ormerod, who led the work.

The Bill has one simple purpose: to pave the way for the sentencing code. That code will make the sentencing process easier, quicker and more transparent. The Sentencing Bill, which creates the code, was introduced in the House of Lords on 5 March under the special procedure reserved for Law Commission consolidation Bills. I commend the Bill to the Committee as an important and, some have said, long overdue step to simplify a very complicated area of law.

Chris Philp

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With the permission of the Committee, Dame Rosie, I thank the hon. Member for Enfield, Southgate for his considered support for the Bill. It is very welcome indeed, and I am glad that we can work together in a spirit of co-operation to get it through the House. He mentioned a delay. He is right that the Law Commission report was published in November 2018. In fairness to my predecessors, I should say that 2018 was a rather eventful year in Parliament, with quite a lot going on, including a change of Prime Minister and a general election, along with various other things. As a result, matters progressed through Parliament a little more slowly than they might otherwise have done. The Bill was introduced in May 2019, carried over and then had to be reintroduced after Dissolution. It has suffered from the political turbulence of the past 12 months, but we are here now and want to get it passed as quickly as possible. I am grateful for the Opposition’s support for the Bill and look forward to working with them to get it on to the statute book quickly.

Question put and agreed to.

The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)

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The Bill seeks to pave the way for the consolidation of sentencing procedural law in the forthcoming sentencing code. Currently, when passing sentence, a sentencing judge must consider the sentencing law that was applicable at the time of the offence. Given the number of different pieces of sentencing legislation passed over the years, that is often a complicated exercise. When reviewing that area, the Law Commission discovered 1,300 pages of legislation governing sentencing in this country. When it conducted a review in 2012, it discovered that errors were made in sentencing in 36% of cases, we think as a consequence of the extraordinary complexity of having to work out which piece of sentencing law applied at the time of the offence. Therefore, given the concept behind the sentencing code and its essential precursor, the Bill will ensure that a single set of sentencing legislation is applicable at the time of sentence, to which sentencing judges may refer.

The Law Commission was asked to look at this issue in September 2014. After Herculean labours it reported back in late 2018, but as a consequence of various general elections and other constitutional disruption, only in 2020 do we finally enact this Bill. I put on record my thanks to the Law Commissioners for their work, and particularly Professor David Ormerod, QC, for the enormous amount of work he has done in preparing the sentencing code for which this Bill paves the way.

As I understand it there are no amendments to the Bill’s five clauses, but I will briefly speak to each clause—I will be extremely concise. There are two substantive clauses. Clause 1(3) contains a clean sweep provision that removes those historical layers of sentencing law legislation to which I referred, so that when the sentencing code is enacted, which will be soon, sentencing courts will no longer need to refer to the historical versions of sentencing law in place at the time of the offence, and can instead refer to the sentencing code that was in force at the time of sentence.

We are, of course, extremely mindful of the well-established common law right that no offender should be subject to a heavier penalty at the point of sentence than was in force at the time of the offence. That right is enshrined in article 7 of the European convention on human rights, but the common law right long predates that. Therefore, in recognition of that important principle, there are a series of exemptions to ensure that no offender will suffer a heavier penalty than would otherwise have been the case. Those are expressed in clause 1(4) and (5), and in a wider list of exemptions enumerated in schedule 1.

Clause 2, the second substantive clause, essentially makes a series of amendments and modifications to existing sentencing legislation. Those are enumerated in schedule 2, which is quite long, and they essentially correct minor errors, streamlining sentencing procedural law. For example, they change language to avoid inconsistency and update statutory references. Because any consolidation must operate on the current law, we need to make those changes to enable the consolidation to happen in a technically correct way. They are therefore all essentially technical amendments to ensure that legislation works in the way that is intended.

I stress that the provisions of neither clause 1 nor clause 2 make any substantive changes to sentencing law. They do not increase or reduce the penalties for any particular offence; they simply clarify the way that sentencing law is available to judges to use when they pass sentence. It is a procedural simplification. Nothing in the Bill changes the actual level of sentences that are available to the courts to pass down.

Clause 3 is a technical interpretation clause, clarifying what is meant by the various definitions and phrases used in the Bill. Clause 4 provides regulation-making powers in the Bill, if any changes need to be made that are necessary for the implementation of the sentencing code and for no other purpose. Any such statutory instruments would be made by the affirmative procedure.

Finally, clause 5 sets out the commencement provisions. Although, of course, the regulation-making powers will have effect upon gaining Royal Assent, the wider force of the Bill takes effect only when the sentencing code has been passed. The sentencing Bill enacting the code will be before the House relatively shortly.

I do not wish to detain the Committee any longer discussing clauses to which no amendments have been tabled, but I hope that gives the Committee a flavour of the clauses’ operative effect. This is a piece of extremely important legislation that I think the entire legal community will strongly welcome. It is a shame that it could not have been introduced any earlier, but we are doing so today, and it will greatly improve the operation of criminal sentencing in this jurisdiction. I urge the Committee to agree that clauses 1 to 5 stand part of the Bill.

Chris Philp

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Let me start by also welcoming the hon. Member for Stockton North (Alex Cunningham) to his place on the Opposition Front Bench. Like him, I am looking forward to many exchanges in the coming weeks and months as we debate the volume of legislation coming through and other matters connected to our courts system. He mentioned the issue of the case load before the courts. Of course, the outstanding case load before the Crown court prior to coronavirus was significantly lower than it has been in the past, particularly in the 2000s, but we want to get it down even further. Naturally, coronavirus is causing a number of challenges in the courts, but he will know that we are reintroducing jury trials. That commenced on 18 May and they are now operating in seven courts. We intend to expand that as quickly as we safely can; we hope that a number of courts that have been closed will reopen as soon as they are safely able to do so. He will also be aware that we are expediting the roll-out of the cloud video platform, which will allow many, many hearings to take place on the platform which otherwise, owing to social distancing, would not be possible. This probably is not the time to rehearse everything in detail, but let me reassure him that a huge amount of work is being undertaken by the Ministry of Justice and by Her Majesty’s Courts and Tribunals Service to make sure that our courts system functions in the way that we want and that we avoid the accumulation of large backlogs as a result of the coronavirus epidemic.

The hon. Gentleman asked particular questions on the timing of the Sentencing Bill enacting the sentencing code. As I said, we are hoping to bring that forward in this House as soon as we can. I regret to say that I cannot give him a precise time, as it is still subject to agreement by business managers, but we want to bring it forward as quickly as we can. We will also make sure that regardless of the sequencing between that Sentencing Bill and the Counter-Terrorism and Sentencing Bill, they technically fit together. I was glad to hear him, in essence, welcoming the Counter-Terrorism and Sentencing Bill, which we will be discussing shortly; I hope it is one of those topics where we can approach it across the House in a bi-partisan spirit of co-operation. Matters touching on national security and protecting the public from terrorism are topics where, in general, we are able to work together, and I very much hope that will apply to that Bill as well.

My hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), the Chairman of the Justice Committee, echoed my thanks to Professor David Ormerod, which I wholeheartedly endorse and repeat. I wish to give my hon. Friend the assurance he requested that the approach he laid out here in terms of clarity, consistency and consolidation is a principle that we would wish to apply in the future.

It is no good doing the consolidation exercise once and simply having a snapshot. We want it to be, as he put it, a living instrument that will be applied into the future so that the consistency and clarity that the Bill and the sentencing code will bring are not frozen in time but rolled forward and applied in the future too. I can therefore give him the assurance that he asked for.

The hon. Member for Vauxhall (Florence Eshalomi) raised a question following up an intervention, which I recall, from her colleague the hon. Member for Hammersmith (Andy Slaughter) on Second Reading, which happened in a Committee Room a few weeks ago. I think I said that publishing guidelines on common errors that might be avoided was a matter probably best handled by the Judicial College, or possibly the Judicial Office. I will follow up again with them to check in on progress in that area.

In a similar spirit, my hon. Friend the Member for Aylesbury (Rob Butler), who is of course extremely experienced in this area, as he mentioned, drew attention to the importance of training. Again, once the sentencing code is enacted, the Ministry of Justice will work with the Judicial Office, the Judicial College and of course the Magistrates Leadership Executive to ensure that the training measures are in place so that the judiciary who are using the code are able to do so to best effect.

I thank Members who contributed to the debate for their very constructive and thoughtful comments. Again, I commend clauses 1 to 5 to the Committee.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clauses 2 to 5 ordered to stand part of the Bill.

Schedules 1 and 2 agreed to.

The Deputy Speaker resumed the Chair.

Bill reported, without amendment.

Third Reading

The Lord Chancellor and Secretary of State for Justice (Robert Buckland)

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I beg to move, That the Bill be now read the Third time.

In listening to the short but meaningful debate in Committee, I was struck by the number of contributions that dealt properly with the detail of this important measure. I speak with a high degree of personal experience, having expended many work hours as a practitioner and, indeed, as a part-time judge myself in trying to make sure that the relevant legal provision that applied to the particular sentencing exercise was complied with.

I thought to myself many times that the time I expended on making sure that the letter of the law was adhered to should have been time in which I could have been considering either the merits of the sentencing exercise or, indeed, the fate of the defendant whose sentence was about to be passed. That has to be the focus of the sentencing exercise: the justice of the case and the merits of the decision—an important, often life-changing decision—to be made by a judge or a magistrate about the sentence to be passed upon an individual defendant. Therefore, what we are doing in this House today is not a mere academic exercise; it affects the real lives of real people.

That is why for several years, as a Minister, as a Law Officer, as a Minister of State in the Department that I continue to serve in, and now as Secretary of State, I have pressed for this measure to be advanced before both Houses of Parliament, and I am particularly delighted to speak on Third Reading in its support. As we have heard, this measure paves the way for what will be the biggest consolidation in sentencing law ever undertaken in the history of the criminal law in England and Wales. What it will allow is the sentencing code, which is currently before the other place. It is that code that will bring together the procedural provisions on which the courts have to rely during sentencing. It will, for the first time, provide a coherent and unified structure. I firmly believe that it will assist greatly in reducing the risk of error, appeals on errors of law and, of course, delay in the sentencing process.

I know that judges in the Court of Appeal as well as practitioners the length and breadth of England and Wales will be relieved and delighted to know that this measure is making a swift passage. Having spent many hours delving through the pages of Archbold and Blackstone, the bibles of criminal practitioners, I can say that it was with a sinking heart each year that, when I had a new edition of those worthy tomes, I found that the sentencing chapter had got even longer and more complicated.

Now here is something that we, as parliamentarians, can do to make that job a more sensible one. The measure will also improve confidence that the public need to have in sentencing, because clearer law—accessible law—leads to greater understanding. One of the big issues about sentencing that has perplexed me for many years has been that gulf between what the practitioner and the lawyer might understand and how it is explained to the public. It is not good enough, which is why this measure is not only desirable, but essential.

Thanks have already been tendered to staff at the Law Commission and, indeed, to parliamentary counsel who have worked extremely hard on this complex area of law over the past five years. This is an exceptional achievement, Madam Deputy Speaker. I add my personal thanks to Professor David Ormerod, whose work on this and other measures has been of singular importance in improving the quality of our criminal law. Without their efforts I do not believe that we would have got here today.

This Bill lays the groundwork. It creates the foundations for what will be a consolidation process that will then allow the sentencing code to apply. It is, therefore, not just as the Secretary of State, but as a former practitioner and judge who has personal experience and, if you like, skin in the game that I rise with particular pleasure to commend this Bill to the House on Third Reading.

Robert Buckland

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Madam Deputy Speaker, I crave your indulgence for a few moments to wind up this Third Reading debate. I am grateful to my hon. Friend the Member for Ipswich (Tom Hunt), who already, in the short time he has been in the House, is proving to be a very effective and powerful advocate for the town that he has the honour of representing. The matter that he raises will, I am sure, be examined by either me or one of my ministerial colleagues, consistent with the constraints we have with regard to individual cases.

I am grateful to all Members for their contributions. The hon. Member for Vauxhall (Florence Eshalomi) rightly referred to the contribution made by Lord Falconer, one of my predecessors, in the Lords. She enjoined me to follow his guidelines, to use the word that she coined.

I would perhaps recharacterise it in this way: Lord Falconer’s helpful suggestions are ones that I very much bear in mind, and I like a sinner who repenteth. I will be cheeky for a moment and remind the House that while he, as a distinguished member of the Labour Government, was sitting in the Cabinet, I, as a practitioner and part-time judge, was actually having to deal with the slew of criminal justice legislation, to which the hon. Lady referred, year after year. It slowed down a bit, to defend my Government’s record, but she makes a very important point, which this Bill will of course help to deal with.

To be fair to the previous Labour Government, in the year 2000 they passed a consolidation Bill called the Powers of Criminal Courts (Sentencing) Act, which was designed to cure the problem that we are still grappling with now. It was an excellent piece of work, but, sadly, within two years it had been superseded by another criminal justice Act. This Bill is different because we have a code, and once it is brought in, the code will indeed endure, I hope for all time. The point the hon. Lady made about future legislation having to be consistent with it and with the schedule is a very important one, and I absolutely accept what she says.

I am grateful to my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), the Chair of the Justice Committee, for supporting not just this Bill but the invaluable work of the Law Commission. He will be glad to know that, as the Minister responsible, I am extremely keen to work with it and its current chair, Lord Justice Green.

I am very grateful to my hon. Friend the Member for Aylesbury (Rob Butler), who brings huge experience of the criminal justice system to this place. He is absolutely right to remind us that the experience of criminal justice is not something dry and for the pages of a law book; it is about the lives of real people—whether they are defendants, witnesses, jurors or victims—and that point must not be forgotten.

I am very grateful to the Opposition spokesman, the hon. Member for Stockton North (Alex Cunningham), for the way in which he has approached this important measure and the support he has given to it, while qualifying his remarks about the need to hold us to account, which I of course accept with alacrity.

Madam Deputy Speaker, sometimes the little things matter. This Bill may not attract headlines in the newspapers and it may not be the stuff of high political drama, but believe you me, this is a Bill for the ages. I commend it to the House.

Question put and agreed to.

Bill accordingly read the Third time and passed, without amendment.