Second Reading Committee
Arrangement of Business
The Deputy Chairman of Committees (Viscount Ullswater) (Con)
My Lords, before the Minister moves that the Bill be considered, I remind the Committee that the Motion before it will be that the Committee do consider the Bill. I should perhaps make it clear that the Motion to give the Bill a Second Reading will be moved in the Chamber in the usual way, with the expectation that it will be taken formally.
Sentencing (Pre-consolidation Amendments) Bill [HL]
Wednesday 12th June 2019
(5 years, 6 months ago)
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, this Bill makes mainly technical changes to existing legislation which will facilitate the enactment and operation of the Law Commission’s sentencing code—a consolidation of legislation governing sentencing procedure in England and Wales. I emphasise that it is concerned with sentencing procedure; it is not concerned with sentencing policy.
It is not a controversial proposition, I suggest, that one pillar of the rule of law is that the law should be intelligible, accessible, clear and predictable. It is equally uncontroversial to say that, in our criminal law, the law governing sentencing procedure has grown incredibly complex and disparate. We have seen numerous examples of even the most experienced legal minds in the country spending too much time trying to disentangle which law applies to particular offenders. This is exacerbated by the need to deal with multiple changes to the statute book, which may determine what sorts of disposals are available in a particular case. As a result, too much time is taken up by the Court of Appeal in appeals against unlawful sentences. That is not good for the victims of crime, who want closure on their cases, and certainly not good for confidence in our justice system.
Against this background, it was agreed in 2014 that the Law Commission should undertake a project designed to consolidate the law relating to sentencing procedure. The resulting sentencing code brings together the procedural provisions which a sentencing court would need to rely upon during the sentencing process into one Act, and structures them in an order which follows the chronology of a sentencing hearing. The aim of these improvements is to assist legal professionals in identifying and applying the law, thereby reducing the risk of error, appeals and delay in the sentencing process. The sentencing code will also enhance the transparency of the process for the general public.
The Law Commission consulted extensively over the four years of the project and published a concluding report in November last year. The sentencing code project has received a broad consensus of support from across the judiciary and the wider legal profession. Alongside the report, the Law Commission also published a draft version of this Bill and a draft sentencing code Bill. The enactment of both pieces of legislation is the core recommendation of the report. This Bill has therefore been deemed suitable to be considered by your Lordships under the special procedure for Law Commission-recommended Bills. Before the sentencing code can be taken forward, changes to existing legislation are needed to facilitate the consolidation of sentencing procedural law in the code. This is a common feature where consolidations take place, and this Bill will make those necessary changes.
One of the reasons behind the complexity of current sentencing law is the layering of changes to sentencing legislation over time. We are concerned, among other statutory enactments, with the Justices of the Peace Act 1361. Different provisions apply to different offences and offenders, depending on when the offence was committed. Sentencing courts often have to refer to historic versions of sentencing law to ensure that the sentence passed is in accordance with the applicable law at the time of the offence. Identifying and applying historic versions of sentencing law can be difficult and, indeed, time-consuming. When an offence has occurred several years ago—which is not uncommon—and new disposals have been introduced, others have been updated and some discontinued, it is not always clear what types of disposals are available in the case before the courts. On top of that, the precise details of how those changes to the law have been commenced or saved may be scattered across the statute book.
Let me give some examples. In one recent case, the offender was sentenced to a community order with a three-year supervision requirement, following a conviction for an offence committed between March 1981 and March 1983. The Court of Appeal substituted a sentence of 24 months’ imprisonment, suspended for 12 months, following an application by the Attorney-General. However, as the offence had been committed before 4 April 2005, a suspended sentence was not available to the court under the Criminal Justice Act 2003. Instead, the court could only impose a suspended sentence in line with historical sentencing provisions under the Powers of Criminal Courts (Sentencing) Act 2000. That meant that the court had to follow a different test concerning the availability of a suspended sentence, and no community requirements could be imposed as part of it.
Difficulties in identifying the applicable disposals available to the court can also lead to significant injustice. In another case, the offender was sentenced in August 2006 to a sentence of imprisonment for public protection under Section 225 of the Criminal Justice Act 2003 with a minimum term of six years, following a conviction for an offence committed between August 2004 and January 2005. However, Section 225 of the 2003 Act had been commenced prospectively, and only applied to offences committed on or after 4 April 2005. As a result, a sentence of imprisonment for public protection was not available for the offender. The sentence imposed was therefore unlawful. Perhaps incredibly, it was only two and a half years after the expiry of the minimum term that the offender appealed against the sentence and the imprisonment for public protection sentence was quashed and replaced with a sentence of 12 years’ imprisonment, with an extended licence of 10 years. This resulted in the offender’s immediate release.
Clause 1 seeks to remedy this sort of issue by giving effect to what the Law Commission calls a “clean sweep” of sentencing legislation. That will remove the need for sentencing courts to identify and apply historic versions of sentencing law. It does this by extending provisions which have been partially commenced and completely repealing provisions that have previously been repealed but partially saved. It deems that “transition time”—the point at which a given provision was commenced, repealed or amended—to have occurred at a notional point in time before what we might term a “trigger event”. The “trigger event” is the event which governs what sentencing procedure applies in a given case. The obvious example of that is the point when the offence was committed.
For example, let us say that an old rule about sentencing currently applies to offences committed before 1 January 2010. The Bill will deem that provision to have been repealed completely at a point in time before any pre-2010 offence was committed. Likewise, any successor provision will be deemed to have commenced before the offence was committed. As a result, the current law as enacted in the sentencing code will apply to all sentencing decisions when an offender is convicted after its commencement, irrespective of the date the offence was committed. The two important terms here, I suggest, are “transition time” and “trigger event”.
Importantly, the clean sweep is subject to exceptions to ensure that no offender is subject to a greater maximum penalty than was available, or to a minimum or mandatory sentence that did not apply at the time the offence was committed. Those exceptions ensure that the clean sweep does not contravene the general common law presumption against retroactivity, and accords with human rights protections against retroactive criminalisation and retroactive punishment, as provided for by Article 7 of the European Convention on Human Rights. That is an important step, and a very neatly designed legal tool, which will help to minimise the risk of error caused by having to look through various historic layers of sentencing legislation, and one which the Law Commission considered very carefully during its considered and lengthy consultation.
Since a consolidation must operate on the current law, Clause 2 refers to the amendments and modifications of sentencing legislation contained in Schedule 2. Making changes to facilitate consolidation in this way is a standard measure that precedes consolidation Bills. These pre-consolidation amendments are generally limited to correcting minor errors and streamlining sentencing procedural law—for example, changing language to avoid inconsistency or updating existing statutory references, such as omitting references to local probation boards, which were abolished by Section 11 of the Offender Management Act 2007, or where there are amendments replacing references to the education and library boards, which were abolished by the Education Act (Northern Ireland) 2014, with references to their replacement, the Education Authority.
Other amendments come about as the process of consolidation itself creates the potential for anomalies that otherwise might not matter. For example, there are amendments in Schedule 2 that repeal provisions of the Powers of Criminal Courts (Sentencing) Act 2000 and the Crime and Disorder Act 1998, which provide express powers of appeal against restitution orders and parenting orders. These orders may be appealed anyway under the general powers available in Section 108 of the Magistrates’ Courts Act 1980 and Section 9 of the Criminal Appeal Act 1968. So removing the specific appeal rights provided for does not alter the legal position, but keeping them in the consolidation could put appeal rights against other sorts of disposal in some doubt.
Other amendments resolve unnecessary ambiguity. For example, Section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 governs the minimum sentences for repeat drug trafficking offences, but in defining what is an “appropriate sentence” for those aged 18 to 20 the provision does not currently refer to the power of the courts to impose a sentence of custody for life. It is clearly not the intention that, where a minimum sentence applies to an offender aged 18 to 20, the courts cannot impose a sentence of custody for life where they consider that the seriousness of the offence and the danger the offender poses to the public justify it. The Bill therefore amends the 2000 Act so that it is clear that the court may impose a sentence of custody for life where the minimum sentence applies, the offender is aged 18 to 20 and the offence carries a maximum penalty of life imprisonment. All this applies already in current law, but the Bill simply makes the statute book clearer and, we hope, easier to use.
Finally, some amendments look to continue to give effect to the clean sweep approach relating to future amendments to the law. These amendments alter the Secretary of State’s power to amend things such as the maximum period of a conditional discharge, the limits for unpaid work requirements and alcohol abstinence and monitoring requirements, or the list of offences considered to have a terrorist connection for purposes of sentencing. The changes in the Bill mean that, if changes are made by order in the future, those can apply to any offender convicted after the change comes into force, not only for any offender whose offence was committed after that time. It should be emphasised that none of the amendments in the Bill makes changes to existing offences or penalties, nor do they introduce any new substantive law or sentencing disposals.
In summary, the Bill has two main objectives: first, to remove historic layers of legislation; and, secondly, to make changes to the existing law of sentencing procedure to facilitate the consolidation in the sentencing code. The sentencing code will be introduced to Parliament at a later date under the special procedure reserved for Law Commission consolidation Bills. I finish by acknowledging that the Government are very grateful indeed to the Law Commission, in particular the Law Commissioner for criminal law, Professor David Ormerod, and his staff for the work they have undertaken over the last few years. Indeed, I express my personal appreciation for the work he has done more recently to try to inform me as to the details of this proposed legislation. I beg to move.
Baroness Mallalieu (Lab)
My Lords, I welcome the Bill as the first legislative step towards the creation of a much-needed sentencing code. In doing so, I declare interests both past and present, including 40 years at the criminal Bar—some of that was as a recorder, although I am now retired—and a present interest in a daughter who, against all my personal advice, has gone to work as a criminal barrister down on the western circuit.
The Council of Her Majesty’s Circuit Judges did not exaggerate when it described the present state of sentencing law as a “disgrace to our jurisprudence”. As a barrister, the words I dreaded hearing from a judge in court were, “What are my powers in this case?”. Sometimes, indeed quite often, extensive research involving complexity, uncertainty and multiple pieces of legislation with multiple amendments was needed to give a reply of any sort, or at least our best guess. As a result, mistakes by both advocates and the judiciary are not uncommon—the figures for them are startling—requiring further court time and expense to correct them. As the noble and learned Lord, Lord Keen, indicated, that sometimes goes on long after the sentence has been delivered and the case has had to go to the Court of Appeal.
A single code for most criminal law, updated regularly and kept in one place, is essential and long overdue, as is the clean sweep to be introduced so that the law on the day of sentencing will be applied after the code is enforced. For the Bar, there will be no more looking back, particularly in the all-too-frequent historical sex abuse cases that currently fill our courts to try to find out what the sentence was for indecent assault 20 years ago when the offence was committed. This legislation is urgently needed. I am therefore particularly pleased that the Law Commission and others have found time to consider the Bill and its consequences; I am very grateful. Too often, when a much-needed Law Commission Bill has been prepared after a vast amount of work it sits and waits, sometimes almost indefinitely, for some legislative time to be made available.
I also strongly support the way in which this House has chosen to scrutinise this legislation with the pre-consolidation amendments. Having sat for some years on the Joint Committee on Consolidation Bills, where the legal subject matter is almost invariably highly technical and, on occasion, very obscure—as in this case—I have no doubt that the effective scrutiny of detail that Bills receive there would clear the Floor of the House in minutes. It would take a very long time if dealt with in that way. In this case, the special Public Bill Committee proposed will provide an excellent opportunity for that detail to be examined and for evidence to be given, if necessary. I therefore welcome the procedure.
A sentencing code will be a boon not just to lawyers and judges but to members of the public—not just those who are convicted—who deserve certainty and transparency. Additionally, the estimated net financial benefit over 10 years is a staggering £255.57 million, made up from freed-up court resources and reductions in delay. I express my hope that some of that money might be devoted to other aspects of our criminal justice system, which are in dire need. I almost wish I was back at the Bar.
Lord Hope of Craighead (CB)
My Lords, it is a pleasure to follow the noble Baroness, Lady Mallalieu, and to acknowledge the fact that she has been much closer to the day-to-day problems of the sentencing process than I have. I spent my judicial career in the appellate courts, in various places; we encountered these problems from time to time but to nowhere near the same degree she has told us about, based on her substantial experience.
I have no hesitation in welcoming the Bill. I am delighted that it is being sponsored by the Government. As chairmen of the Law Commission know very well, and as the noble Baroness said, it has not been easy for Law Commission Bills to make progress in Parliament as parliamentary time is often at a premium. Without government sponsorship it would be difficult for any progress to be made at all, so we must be grateful to the Government for being willing not only to sponsor the Bill but to find time for it, as they have done today.
As it happens, it has not been all that difficult at this juncture, given the present state of politics in this country, to find time for this Bill. It is obvious to everyone in this House that it is being starved of legislation that we can really get our teeth into. The Kew Gardens (Leases) (No. 3) Bill and the Wild Animals in Circuses (No. 2) Bill are really quite lightweight in comparison with what we are normally used to. There is a bit more in the Courts and Tribunals (Online Procedure) Bill, as anyone who listened to the spirited debate in Committee on Monday will have noticed, but even in that case the Committee stage lasted only for two hours and 40 minutes. So, based on my own experience of dealing with the usual channels as I do, it was not too difficult to persuade them that this Bill should make rapid progress as soon as possible.
As the short title of the Bill indicates and as the Minister made clear in his opening, this is doing no more than laying the sound basis for the enactment of the sentencing code, which has been the subject of so much hard work by the Law Commission. As a rider to what I was saying about the speed at which this Bill has been brought before the House, one must wish that that rapid progress will be extended to the next stage of the process, when the sentencing code itself comes forward for enactment. Of course, at Second Reading we are concerned with only the issues of principle, not the details. The meat of the Bill really is in the two schedules, to which the Minister has referred, and there will be an opportunity for detailed examination of them in Committee with the advantage of the special procedure, to which reference has been made.
As for the issues of principle, perhaps I might make one or two points. The first is that there is no doubt whatever that the current law relating to sentencing has become less and less acceptable, and more and more confused, as it is scattered about various statutes which themselves have been subject to frequent amendment. It is one of the requirements of the rule of law that the law which the magistrates and judges have to apply in the sentencing process should be clear and accessible. As matters stand today, and for the reasons which have already been made, the law relating to sentencing is at serious risk of failing to meet that requirement. The purpose of the sentencing code is to address that problem, in a way that gets over the hurdle of piecemeal attempts to keep the law up to date. For that reason, one must applaud the work that has been done and the presence of this Bill before the Committee today.
There is, however, one aspect which deserves to be carefully noted. It is the approach to dealing with the changes in the law, which has been described as a clean sweep. The Minister referred to this in his opening. As I understand it, that is what subsections (3) and (4) of Clause 1 are about, being designed to ensure that those convicted after the code comes into force will be dealt with according to the most up-to-date law. But there is a corollary to that requirement: that the convicted person must not be dealt with by the imposition of a penalty of any kind which is more onerous than that which he would have faced when the offence was committed. This is the rule against retrospective penalties to which the Minister referred. I hope that particular care will be taken in Committee to see that the protections described in Clause 1(4) as needing to be in place before the Bill is enacted will be adequate in all circumstances. I have no doubt careful consideration will be given to that.
Although I said that we are concerned with principles and not with details I would like to draw attention to one other matter, bearing in mind that the jurisdiction from which I come is north of the border. I draw attention to paragraphs 90(1) and 90(2) and paragraphs 92(1) and 92(2) of Schedule 2. These provisions deal with the transfers of community orders and suspended sentences imposed in courts in England and Wales to Scotland under the Powers of Criminal Courts (Sentencing) Act 2000. The effect of Clause 5(6), which deals with the extent of the Bill, is that these provisions extend to the whole of the United Kingdom and not just to England and Wales. The effect is that to some degree, although not very much, the law of Scotland will be altered by the provisions to which I have referred. Have the Scottish Government been consulted about these provisions? If so, have they indicated whether they are content? I would not imagine there would be too much difficulty about that, but I would hope that the protocols were observed.
I draw attention to the power to make further amendments by regulation under Clause 2(2), which is also extended to Scotland by the provisions of Clause 5(6). In that connection, can the Minister assure the Committee that the usual conventions will apply in that case as well, if the power is exercised in a way that affects the law of Scotland? All that having been said, I am very happy to offer my full support to the Bill.
Lord Garnier (Con)
My Lords, it is a pleasure to follow the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Mallalieu. I think that all of us in the Room will support this measure. The Law Commission has told us that there are three good reasons for codifying the law on sentencing: it would make the law simpler and easier to use; it would increase the public’s confidence in the criminal justice system; and it would increase the efficiency of the sentencing process.
I do not intend to say anything other than a few remarks about making the law simpler and easier to use. I say it from the point of view of someone who was a recorder, like the noble Baroness. Unlike her, I was not a criminal practitioner. I learned such criminal law as I did learn at the feet of someone who was then called Lord Justice Judge, who used to chair the recorders’ training weekends in Cheltenham. In the mid-1990s, when I was there, it dawned on me just how complicated criminal law was and, in particular, how complicated criminal law to do with sentencing was. As a civil practitioner, I had rather a grand idea about criminal law and thought that it must be terribly easy. Well, it is not and was not. Since I became a recorder in 1998, it has just got more and more complicated, so anything that can be done to make it simpler and easier to use is to be applauded.
I say that not only because it would have helped me—it became so complicated that I had to stop in 2015 as my brain was beginning to ache—but because most criminal cases, certainly in England and Wales are tried by amateurs, the magistracy, the lay Bench, which deals with about 90% of criminal cases, possibly more, and recorders, who are part-time judges who sit as Crown Court judges for perhaps three or four weeks during the course of the year. Many of them will be non-criminal, civil practitioners: solicitors and barristers whose specialism is in areas of the law outside crime.
Like the noble Baroness, I would frequently ask the advocates in front of me, “What can I do in this case?”, expecting that those experienced barristers—some were less experienced—would be able to tell me. Often, we had to adjourn for 20 or 30 minutes while everyone went and looked up the answer to the question. I confess that it was not always the case that we got it right, which led to the expense and delays to which the noble Baroness has already referred.
The problem is also accentuated because the amateur judges, be they magistrates or recorders, tend to do the cases “of less importance”. The irony, though, is that High Court judges and senior Crown Court judges frequently sit in murder cases, or cases where the only available penalty is life imprisonment. The biggest question that they have to decide as a matter of sentencing law concerns the tariff—that is, what is the minimum amount of time that the defendant will have to serve as part of that life sentence? But for the Crown Court recorder dealing with a case of burglary, domestic abuse or death by dangerous driving, with all its complicated aspects—or, sometimes, a historical sex case—a judge might on occasion be looking at the law prior to 1956 and applying it to a sentencing exercise in 2007 or 2015. That adds to the complications to which my noble and learned friend has already drawn our attention. For that reason alone, if we can introduce this sentencing code as quickly as we sensibly can, I suggest that the Bill is to be much welcomed.
I will give one further illustration of the complicated nature of our current sentencing system. In the first decade of the century, after the passing of the Criminal Justice Act 2003, one of the little games I used to play was to put down a Written Question at the beginning of every Session, asking the then Labour Government how much of that Act had been implemented, how much of it had been repealed before being implemented and how much of it had been repealed after implementation. Broadly, between about 2004 and 2010, the answer, “One-third, one-third and one-third”, used to come back. That is not a good way to run a criminal justice system. Although I appreciate that it is but the overture to the main work, if the Bill and this collection of measures can reduce that sort of stupidity and illogicality in our sentencing system, so much the better.
I heartily support the sentiments behind the Bill. I look forward to its speedy, but properly scrutinised, progress through this House and the other place. In finishing, I add my personal thanks to Professor David Ormerod. He first began discussing this matter with me more than five years ago, probably longer. I honestly did not think that I would live to see the codification of our sentencing system, but he and others at the Law Commission, under the chairmanships of both Lord Justice Bean and Lord Justice Green, have performed quite spectacularly to get this highly complicated subject reduced into something that even I can understand. I look forward to seeing it get on to the statute book.
Lord Judge (CB)
My Lords, I shall mentioned just a few facts. When I retired as Lord Chief Justice, it was already a matter of urgent necessity that we should have a sentencing code. The various difficulties have already been analysed, but I want to add one: that, from time to time, men and women were detained in custody in prison for longer than they should have been because, just as judges found difficulty understanding the criminal justice system, so indeed did the Prison Service. What does this sentence mean? Does this mean that he or she can be given a date of release for x, y or z? From time to time individuals were detained for longer than they should have been.
I have personal experience of a case—it still troubles me hugely—of a young man who was 17 when he committed a relatively minor indecent assault and was put on probation. It seemed a very sensible decision. He broke the probation order and then ran into difficulties, so he was more or less in and out of the courts for some time. By November 2004, he was arrested because by then he had not notified his change of address on a number of occasions. The issue before the court was whether he complied with the notification provisions. This is not major stuff, but there is a provision which requires sex offenders to notify their changes of address. It is a perfectly sensible piece of legislation. When he was hauled before the Crown Court on an indictment alleging this failure, the poor judge who had to decide the case reserved his judgment and decided that the man was guilty of the offence. He sentenced him to three months’ imprisonment.
There was an appeal, because the issue was obviously arguable, and it came before a court on which I presided. Slocombe was the case. What did we have to look at to decide whether he should have notified a change of address? There was the Sex Offenders Act 1997 and the Criminal Justice and Public Order Act 1994—I put them that way round, apparently strangely, because the relevant provisions had come into force in March 1998; that is, after the Sex Offenders Act had come into force. Before the judge it was assumed that there was nothing in the Sex Offenders Act 1997 which had any relevance to the issue, but then it emerged that there had been an amendment to Section 4(1)(a) of the 1997 Act in paragraph 144 of Schedule 8 to a 1998 Act. That came into force on 1 April 2000 and—would you believe it?—four months later the provision was repealed, but the time mattered because May 2000 was when the young man was being sentenced.
After the relevant provisions had been in force for four months, they were repealed when the Powers of Criminal Courts (Sentencing) Act was introduced. My recollection is that we could not find the four months in which those particular powers applied when we looked on a computer. I was not looking on a computer, but people who could use one were looking for them. Eventually, we found the text by ploughing through the old library. No one at the Crown Court could be blamed because, in the end, we had to look at Section 81 of the Sexual Offences Act 2003. That resolved the difficulty, and we decided that the man had not been obliged to notify his change of address. He had pleaded guilty on the basis of a misruling by the judge and had served a three-month sentence for something that he had not committed. That was shocking.
May I add that the account I have given the Committee does not tell your Lordships what notification requirements mean? They involved us looking at these differences in definition: you had to decide between words such as “imprisonment for a term for more than six months but less than 30 months” and “a person sentenced to imprisonment for a term of six months or less”, or, in the case of a young offender “the equivalent sentence of imprisonment”. We had to look at the difference between a period that a person is “liable to serve under a secure training order”—notice “liable to serve”—with the phrase “shall be subject to a period of detention in a secure training centre”, all as part of the legislation which bore on the question of when this young man had finally cleared himself of his notification obligations.
As to where the current law stands on sentencing, in 2015 there was a total of 1,300 typed pages. That was only the current sentencing law because it did not cover the older cases: for example, death by dangerous driving. When I started at the Bar, the sentence for that was two years; then it went to five years, then to 10 years and then to 14 years. There were 14 major pieces of primary legislation, starting with the Criminal Justice Act 1991, followed by—if you want to hear it—the Criminal Justice Act 1993, the Crime (Sentences) Act 1997, and then other Acts in 1998, 2000, 2002, 2003, 2005, 2007, 2008, 2009, 2012, 2014 and 2015, ending, as at this time, with the Assaults on Emergency Workers (Offences) Act 2018. Lord Chief Justices do not beg, but as Lord Chief Justice, I pointed out to the then Government that a significant reduction in sentencing laws would be a good idea. I failed. I ask noble Lords to look at the facts and decide whether this is a well-justified Bill.
Lord Davies of Stamford (Lab)
My Lords, the noble and learned Lord, Lord Judge, has made a very strong case for simplification, and I agree with it. I had two major reservations when I heard about the Bill. One was about the clean sweep, because I thought that it would introduce an element of retrospectivity. The Minister has assured the Committee that there will be adequate protections against that danger and that no individual will be disadvantaged by the clean sweep—in other words, by being judged on the basis of the sentencing rules that apply at the time of the judgment rather than those that applied at the time of the original offence. If I am satisfied by the protections when I see them in black and white, I will not pursue that objection to the Bill.
My second reservation was that I understood that the Bill would apparently provide for new regulations to come forward through the route of other secondary legislation, such as statutory instruments. That is pretty dangerous in the context of changing the principles of the law. We should see the Government’s cards before we embark on the Bill; I think it quite reasonable to ask about their intentions in advance. I have some reservations about using statutory instruments to add to the Bill’s provisions; I cannot see why it is necessary, from a pragmatic point of view.
It has been said that the Law Commission does not get very much chance to modernise and bring our laws up to date because we do not give its legislative proposals enough time in this House and perhaps in the Commons as well. There may be something in that, but keeping the law under review is a fundamental responsibility of Parliament. If the executive branch does not allow us time to do that, it is right that Parliament should make its disappointment and concern known. The House of Commons succeeded recently in seizing control, rather spectacularly, of its own agenda in the Brexit context; perhaps we should consider a similarly dramatic measure if it proves necessary. We certainly ought to make it clear to the Executive that the low priority given up to now to modernising the law should not go on.
In a pure common law situation, the judge is supreme in sentencing. There is a lot to be said for that pristine model. After all, the judge has seen and heard the accused, heard the evidence from all parties and been in the position to take into account testimonials that may favour the accused. The judge alone has all the facts at their disposal, which is attractive in many ways. I am probably not the only person in the room to feel a certain intellectual nostalgia for that model, but as was predicted 100 years ago by Max Weber, we live in an age of bureaucracy and standardisation. The public insist on uniform standards in healthcare and education throughout the country; one understands why that is. There is an understandable desire to make sure that we have uniform standards in the principles of sentencing throughout the country as well, which is the basis of the Bill, and I accept that. That model is certainly a great deal better than the third model: the American model, under which demagogic politicians stand for office, promising to introduce minimum sentences for all kinds of offences—building considerable emotional campaigns in favour of doing so—so that the law is completely blocked by endless, political minimum sentences. That is one reason why the American prison population is so alarmingly high, I think, so I do not want to go down that route. Of the three particular models, the one to go for is the one in which judges have guidance and some constraints on sentencing, which is the present situation.
There is a great deal wrong with the law at present. Since the Law Commission may read the debate in Hansard for once, I want to take this opportunity to say a few words about where I think some of the real shortcomings are. One of them I have to mention is divorce law, because sitting next to me is my friend the noble Baroness, Lady Deech, who has attempted to improve it. Divorce law is in the most appalling mess. Jurisprudence has moved a very long way indeed from the Matrimonial Causes Act, which dates from the 1960s, in different, contradictory directions. How any lawyer can give coherent advice to a client about what is likely to happen in a divorce settlement I really do not know. This is the most unfortunate situation. Unfortunately, the noble Baroness’s divorce reform Bill failed to get through, but I hope she will be encouraged to try again, because it seems a crying anomaly in the legal system. I hope the Law Commission is listening, because it should read the Matrimonial Causes Act, and then proceed to read the major judgments that have been made and the jurisprudence that has appeared over the past 50 years. It will see what an enormous, king-sized problem there is, which no one is presently doing anything about at all, which is very worrying.
Another area that is particularly unsatisfactory is the law on assisted dying. The DPP took it into his head—very rightly, for noble and humane reasons that I totally support—to say that he would not prosecute, under certain circumstances, offences under the present law for assisting suicide. That was the right moral reaction, but it was completely the wrong legal procedure. It is strikingly scandalous that the law should be changed by a decision of the DPP, who is not there to change the law. The law should be changed by either jurisprudence or Parliament if there is a legal principle at stake, which there obviously manifestly is. Parliament has not been doing its job by allowing these anomalies to arise. I was particularly shocked by a statement by no less than Lord Sumption the other day, who said on assisted dying legislation, which has failed in the Commons, that the position ought to remain that the present law should be retained but the law should be broken from time to time. I thought that a deeply scandalous statement to be made by any citizen, let alone a member of the Supreme Court. After all, the law that exists should be enforced equally—that is the point of having it—across the country. The law is, in fact, unjust. It must be changed and got rid of very quickly. Either a law is necessary and just—those are the two criteria—in which case it should remain, or it is unnecessary or unjust, in which case it should go. We should take action on these matters very quickly, not waiting for decades as is happening.
My final point, which I again hope the Law Commission will read in Hansard, because it is urgent that we take this opportunity to do something about it, is on suspended sentences. If we sentence someone to prison and then suspend the sentence, there is no punishment at all. There was a very nasty case just a couple of days ago of animal cruelty. We have provided for custodial sentences in certain egregious cases of animal cruelty. This was certainly a particularly egregious case and clearly one where there was premeditation and deliberate acts of cruelty on the part of the perpetrator. He was sentenced to prison, but the sentence was suspended. In other words, he did not get any punishment whatsoever. I think that he had to pay £100 or £200 in court fees or something like that. This is a complete mockery. I am very worried that judges are being influenced perhaps by the Treasury, which is worried about the size of the prison population, into suspending sentences that should not be suspended. As a result of that, injustices are being created and a considerable degree of scepticism will be produced in the country as a whole about the robustness of our criminal law if that sort of sentencing carries on. I can see very few examples of justified suspension of a prison sentence. If a prison sentence is deserved, it should be served; if it is not, there should not be a prison sentence, and some other form of punishment should be used.
I draw the Law Commission’s attention to these points as well, on which urgent reform is necessary and, if the Law Commission does not take action, we should take action from the Back Benches of this House. We should make a lot of fuss about it and bring it to the attention, so far as we can, of the general public and make sure that these matters cannot be simply buried or brushed under the carpet, as they have been for far too long.
Baroness Deech (CB)
My Lords, I declare an interest as a non-executive member of the board of the Law Commission, the place where I had my first job in 1966. With that caveat, I nevertheless think it is appropriate to pay tribute to the work of the Law Commission, now 54 years old, not just for this Bill but for all it has done to keep our law up to date, thereby earning it worldwide recognition for its distinction.
This Bill is a stepping stone to what will be a far longer Bill—558 pages in the draft proposal when I last counted. It is estimated that in the end it will reduce 1,300 pages of sentencing law to around 450 pages. The project started in 2014 and, when one realises its vast scope, it is remarkable that it has been completed within five years. It therefore behoves Parliament to act as quickly and to progress to the code, which has been universally welcomed by the Bar Council, the Director of Public Prosecutions and the Head of Criminal Justice. It is the result of years of detailed and collaborative research by the Law Commission, including close working with practitioners in criminal law. There have been four consultations. It has been calculated, as the noble Baroness, Lady Mallalieu, noted, that it will save £256 million in terms of time and avoidance of mistakes over the next 10 years.
Sentencing errors, when they occur, are particularly regrettable in human terms to the person affected and also a drain on the judicial system. It is confidently expected that errors will be reduced as a result of consolidating the law on sentencing. Sentencing might also become more visibly rational and accessible to the lay man, which would give support to the rule of law. The consolidation exercise has been mindful of the need to avoid retrospective legislation and not to increase sentences over and above what would have been applicable at the time of the offence. All those involved urge its enactment without further delay.
Given that both Houses have enacted a special procedure for Law Commission Bills in order to ensure a swifter and more specialised passage to the statute book, it is to be welcomed that it is being used now, but one wonders why it is not used more often. The successful enactment of Law Commission recommendations ought to be speeded up, given the record of the commissioners. In recent years, many recommendations have been accepted but not implemented due to a lack of parliamentary time. This ought not to be an excuse. Indeed, we see no particular pressure on time in this House right now. It seems that this Bill is the first to be put through the special procedure since 2017. In total, seven have followed this procedure.
There are three more projects completed by the Law Commission which would seem to be suitable for this procedure, and I would be grateful if the Minister would indicate that he is giving serious consideration to this. The projects are: making land work; technical issues in charity law; and updating the Land Registration Act 2002. They each concern highly technical areas of law which are non-party-political. The Law Commission’s recommendations were reached following detailed examination and consultation with the interested parties. There is strong support for those reforms, which would have significant practical benefits for large numbers of individuals, businesses and the third sector.
Noting the amount of money that this code that we are discussing is likely to save, I think it is clear that money invested in the running of the Law Commission is a good investment with a hefty return, and it ought to be increased rather than reduced. I trust that the Minister will say that more of the Law Commission’s work should be supported.
Finally, I note that in our discussion this afternoon we are joining with the rest of the country in adopting a new philosophy which is very popular. A Japanese author, Marie Kondo, has written a book called The Life-Changing Magic of Tidying. Her philosophy is decluttering. She says that one proper clear-out is all you need for the rest of your life. Once you have your house in order, you will find that your whole life will change. Her mantra is: keep only that which sparks joy. Let this be our guide in consolidating the law.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, it is a great pleasure to follow my noble friend Lady Deech, although even more than most, she makes one wonder why one is bothering.
Perhaps unusually for a Second Reading debate, the imperative, I suggest, for all speakers today has been to say nothing of any great interest, let alone originality—a precept that I am proposing to follow. I am sure that all of us have our own views on various aspects of sentencing policy, our own pet proposals about how it could be improved. I have canvassed some in the past about IPP prisoners still in custody. Today’s Bill, though, as has been explained fully already, has absolutely nothing to do with sentencing policy. As part of what is purely a consolidation process, it does nothing—indeed, must do nothing—whatever to change sentencing policy. The one critical change that the Bill brings about is the rationalisation, the better understanding, of existing sentencing law, which is currently found strewn all over our statute book. That is truly a worthy objective in its own right. I hope that this will put an end to the astonishing number of unlawful sentences that have been passed over recent years. More generally, it will streamline the sentencing process to the benefit of all.
As others have said, the Law Commissioner principally responsible for this project, Professor David Ormerod QC, who came to see me too—although rather more recently than he did the noble and learned Lord, Lord Garnier—is to be warmly congratulated upon what is, in truth, a remarkable achievement. He has worked upon it tirelessly for years and brings to the task huge expertise, ingenuity and analytical skills. Nothing whatever must be done during the Bill’s passage to delay or deflect it into other paths. Comparatively few Bills do indisputable good and cause no conceivable harm. This is one of them, and the case for its smooth and speedy passage into law is compelling. If one thing has emerged from the speeches today, it is surely this: the truly desperate and urgent need for this legislation.
I promised that I would say nothing original or of interest and I have kept my promise. I put myself down to speak in the debate with the sole object of adding my name, for the little it may be worth, to the other, more illustrious, names who are rightly giving their unqualified support to this admirable Bill.
Lord Marks of Henley-on-Thames (LD)
My Lords, it is a particular pleasure to speak because I have rarely attended any debate where there has been quite such unanimity. We of course also welcome the Bill and the intention to introduce the proposed code. The Bill is an essential pre-consolidation measure—or, more accurately, set of measures. I join the noble Baroness, Lady Deech, the noble and learned Lord, Lord Brown, and others in praising the work of the Law Commission and of Professor Ormerod in particular. I only wish that the Government and other Governments would take more notice of other Law Commission reports that have been shelved rather than enacted over the years.
The Bill loyally applies a number of important legal principles which our sentencing law has spectacularly lost sight of in recent decades. The first is that legislation should be accessible: easy to find, in one place, and possible to develop as one body of readable law. In sentencing in particular, where the liberty of the subject is at stake, there should be an end to the draftsmen’s nasty habit of defining words and phrases by reference to other legislation—where, for instance, such and such a phrase “shall have the meaning ascribed to it” in another piece of hardly or only vaguely linked legislation using the same phrase. This means that the reader, who may not necessarily be a lawyer but a lay member of the public trying to find out what the law actually is, has to go scrabbling around in other pieces of legislation to find the meaning he seeks. In some legislation double cross-referencing is not uncommon. I agree with every word that the noble and learned Lord, Lord Hope of Craighead, said on this subject.
Consolidation is generally to be welcomed because it makes legislation more accessible. It is important not only that lawyers and judges can find the law on a topic in one place—the noble and learned Lord, Lord Garnier, illustrated this when he spoke of how often adjournments of the Crown Court are required while everyone rushes around trying to check the legal powers of criminal courts; having seen that many times, I know it is an extraordinarily undignified and unedifying sight—but that members of the public can understand sentencing, not least to enable them to know the actual and potential consequences of illegal behaviour. It is also important that the press can access the law and write about it accurately. The fact that the press so frequently gets the law on sentencing wrong is just as much a reflection on overcomplicated law as it is on careless reporting. The production of a sentencing code will address these issues.
The second principle that this legislation embodies is that legislation should be as simple as possible. The elimination of anomalies and redundant legislation of the kind mentioned by the Minister in opening and by other noble and learned Lords, particularly the noble and learned Lord, Lord Judge, will remove the cause of many of the mistakes made in sentencing and reduce the number of appeals where the sentencing process has gone wrong. The law in this area has become ridiculously complex, as the example given by the noble and learned Lord, Lord Judge, made very clear. It is extraordinary that the Law Commission found that no less than 36% of sample criminal cases randomly selected from the Court of Appeal workload involved sentences that the court below should not have passed as a matter of law. The Law Commission also commented on the delays in sentencing and in sentencing appeals caused by complexity in the law. The noble Baroness, Lady Mallalieu, referred to the huge estimated savings of more than £0.25 billion over 10 years as a result of the proposed implementation of the code. I echo her hope that these savings may be applied to making improvements elsewhere in the criminal justice system.
The third principle, mentioned by the noble Lord, Lord Davies, is that legislation should not be retroactive. While it is sensible and welcome that, by virtue of the clean sweep, when the code comes into force all offenders will be sentenced in accordance with the code whenever their offences were committed, it is right that the Bill provides for an exception to this principle to ensure that an offender will not be liable to a greater penalty under the code than was applicable to his offence when it was committed. That is made clear in the Explanatory Notes and was mentioned by the Minister in opening. I understand that that is the effect of Clause 1(4), but it is an important guarantee and it is essential that it is watertight. The noble and learned Lord, Lord Hope, also made this point.
The code will not, of course, make new substantive sentencing law. That is not the function of a consolidating statute. The noble and learned Lord, Lord Brown, made that point clearly, and I thought almost with strictures for following speakers. However, future sentencing reforms will, one hopes, be made by amendment of the code, which can then be kept up to date and developed as a single and accessible but dynamic body of law.
While discussing sentencing, I mention that we want to see a more wide-ranging reform of sentencing policy incorporated in the code in due course. In its welcome briefing, the Prison Reform Trust calls for a review of the sentencing framework as a whole, which we would support. Our aim throughout is to increase the life chances of offenders by achieving their rehabilitation, thus turning lives around, reducing reoffending rates and cutting the cost to society of crime, not only financially but in terms of disruption and human misery. We hope that the code develops in that direction as time goes on.
As is well known, we want to see an end to short prison sentences of less than 12 months. The evidence suggests that they are very damaging. Apart from that, we also need to end sentence inflation occurring through statutes permitting incremental increases in maximum sentences or new offences with ever greater sentences. Public and media pressure on courts is another source of sentence inflation. Indeed, the present Lord Chief Justice has spoken in the past about the dangers of sentence inflation. I very much hope that the presence of a comprehensive code will help to reduce that danger. In passing, we want to see sentencing judges much more involved in how both their custodial and community sentences for particular offenders will be implemented.
We welcome the Bill and the proposed introduction of a comprehensive and more accessible sentencing code, but we see this as an important step on the way to reforming our entire system of sentencing, punishment and rehabilitation so as genuinely to put rehabilitation first.
Lord Bassam of Brighton (Lab)
My Lords, it has been a pleasure to listen to the debate. I think that I am probably the only lay person to take part in it so I feel privileged to be among such fine legal minds. I am grateful to the Minister for his cogent and coherent introduction. Following the strictures of the noble and learned Lord, Lord Brown, I intend not to be original in anything I say, but I will make some points for the Official Opposition.
It is good to see parliamentary time being used effectively; that has felt like something of a rarity in recent months. With the dearth of legislation being pursued by this Government, as observed by the noble and learned Lord, Lord Hope, we recommend to the Minister that we would be happy to see more Law Commission Bills come through our House. That may be seen as one bonus of Brexit that we can all share and enjoy.
Our justice system currently faces extreme challenges. The decimation of legal aid has reduced access to justice for those who need it most. Courts are facing budget cuts and are haemorrhaging experienced staff. The Government have recently been pushed by voluntary organisations, campaigners and MPs to review the workings of the family courts, as they are failing survivors of domestic violence. In the face of all that and more, we still have to get sentencing right. I absolutely welcome the Bill in that regard. We believe it to be a good place to start.
As noble Lords have said, the Bill is a “pre-Bill” before the main show arrives in the form of a modern, streamlined sentencing code. As has been explained, the aim of the Bill is to repeal bits of the past sensibly and pave the way for the future, allowing the law to be easily accessed and, we hope, amended in one place. I wish to put on record our thanks to the Law Commission and all the other stakeholders that have contributed to the years of work, research and consultation that have brought the Bill before us and the consolidation Bill that will follow it. The noble Baroness, Lady Deech, testified to the reduced number of pages there will be in the code. That is very welcome because it will make the code much easier to understand.
The legislation has been strongly welcomed by the profession. In its briefing, the Bar Council referred to existing sentencing law as a “patchwork quilt” and urged the introduction of the sentencing code without further delay. That patchwork is derived from three statutes, including the Powers of Criminal Courts (Sentencing) Act 2000 and the Criminal Justice Act 2003. I think that I might have been responsible for one of those pieces of legislation as a Home Office Minister.
The commission estimates that there have been at least 14 major Acts covering sentencing in the past 30 years. I know that I took 19 Home Office Bills through in the two years I was exclusively a Minister in that department. I know that at least one of them repealed legislation that had created sentences only six months before. The point about delayering is well meant and well met.
After all that parliamentary work, making changes across primary and secondary legislation, the commission writes that the law on sentencing procedure is,
“extremely difficult to locate, interpret and apply, even for an experienced lawyer or judge”.
What hope, then, for a lay person like me? Apparently very little, we are told, as it can be “practically impossible” for someone to locate and understand parts of the law. That cannot be right.
To illustrate the complexity of the current system, the commission gives two very good examples. At one point, it points to a maximum fine that can be unlimited —you just have to read about it somewhere else. The second example is about the effect of commencement dates recorded separately from the provisions they apply to, concealed in secondary legislation. Noble Lords know only too well the joys of how opaque secondary legislation can be.
The case for change is overwhelming. Noble Lords have spoken about the frankly alarming number of wrongful sentences passed, and the cost of delays and appeals. The complexity of the current layers of law comes at a high price. Beyond lengthy procedure and the public purse, there is, as other noble Lords have said, a human aspect; I thought that the example from the noble and learned Lord, Lord Judge, was extremely good. The impact on those sentenced, on witnesses and, particularly, on victims and their ability to trust in our justice system is immense. I was drawn in particular to the example from the noble Lord, Lord Marks, of the, I think, 262 Court of Appeal cases sampled from 2012, 36% of which had had a wrongful penalty applied.
As has been said, this is a Bill of two parts. The clean sweep, as it has been called, is the more novel part. We appreciate the detailed work done on the possible human rights implications of the sweep and its retroactive remit, particularly on our rights under Article 7 of the ECHR. I welcome the exemptions that have been identified and included in Schedule 1. Clause 1 includes a regulation-making power to allow the Secretary of State to specify other provisions that the clean sweep will not apply to. It would be helpful if the Minister could outline in what circumstances that power might be used. Is the intention for it to be a back-up in case any exemptions have been missed out of Schedule 1?
The clean sweep we are legislating for is a one-off—a single spring clean as it were—so there are key questions about how we intend to retain the benefits of the exercise and prevent layers of new law once again building up to gather dust. Is it the Government’s intention that, where amendments are made to the code, they will also be commenced so that they apply to everyone convicted after that date, regardless of when their offence was committed, thus building in a kind of retroactivity as the norm in our sentencing?
The Bill’s second purpose concerns the more traditional pre-consolidation amendments. I express my thanks to the commission and the Ministry of Justice for the detailed examples they provided on the types of amendments included, and the reasoning and logic behind them. I noted that Clause 2 also includes a regulation-making power—this one limited to regulations that, in the Secretary of State’s opinion, “facilitate” or are,
“otherwise desirable in connection with”,
the consolidation of sentencing law. The Explanatory Notes say that once consolidation has happened, the power will no longer be able to be used. Can the Minister explain whether thought was given to sunsetting either of the regulation-making powers included in the Bill? The Explanatory Notes also say in paragraph 11 that once the sentencing code is commenced, the pre-consolidation Bill,
“will have served its purpose and will largely be repealed”.
Can the Minister outline which elements of the Bill they expect to repeal?
I will wind up with a handful more questions. I am sure the Minister will be delighted. In its background to the sentencing code, the Law Commission referred to the possibility of extending the code to the Armed Forces. Do the Government have any plans to make arrangements for the code to apply also to service jurisdiction? Crucially, when are we expecting the sentencing code Bill to be introduced? A number of your Lordships have said that it ought to be expedited, so can the Minister guarantee that there will be no delay between this Bill and its partner Bill. Finally, the Law Commission tells us that the best estimate of the financial benefit the sentencing code will offer is savings of some £250 million over the next 10 years, which other noble Lords have mentioned. I know that Ministers are always very reluctant to hypothecate where money ought to go, but we have talked about the shortages in funding to the justice system and we owe it to the justice system to ensure that it is well resourced. In addition, we should have some good practice in passing legislation, not least because of the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and its adverse effect on justice in our country. Can the Minister tell noble Lords what plans the Government have to put any savings back into the system to fund desperately needed legal aid and improve overall access to justice? Having said that, we, too, very much support this Law Commission Bill.
Lord Keen of Elie
My Lords, I am pleased that we have been able to find the parliamentary time to progress this Law Commission Bill. As has been acknowledged, the Bill paves the way for the sentencing code legislation which will address the need for clarity and accessibility in sentencing procedure. The noble Baroness, Lady Mallalieu, referred to the requirement for certainty and transparency, and that was echoed by many noble Lords in their contributions to this debate.
I will address how the Law Commission approached the clean sweep and the reasons behind the regulation-making powers in the Bill but before I do that I will pick up on a number of points. The noble and learned Lord, Lord Hope, referred to paragraphs 90 and 92 of Schedule 2 where there is a reference to the law of Scotland in the context of community orders and suspension orders. There is an anomaly in the present law which it is hoped will be addressed by means of the provisions in the Schedule. We have engaged with the officials of the Scottish Government on this matter. Indeed, we have indicated to them that an LCM may be required. We have not had an official response to that as yet, but we do not anticipate there being any difficulty in regard to this matter. If further regulatory powers were used to amend provisions in Scots law, we would, of course, follow the usual convention of engaging with officials of the Scottish Government on that matter.
On the clean sweep, I will attempt to elucidate a little further how it was approached because the noble Lord, Lord Davies, among others, raised whether there should be any concerns surrounding the clean sweep mechanism. The objective is to apply the codified law to all those convicted after the enactment, subject to the important caveat noted by the noble and learned Lord, Lord Hope, that no one can be sentenced to a heavier penalty than could have been imposed on the date of the commission of the offence. In approaching that, the Law Commission had regard to the jurisprudence of the European Court of Human Rights interpreting Article 7 of the convention and to domestic law, as reflected in cases such as Docherty in the Supreme Court, about non-retroactivity with regard to the imposition of maximum penalties in matters of crime. So how did the Law Commission approach the clean-sweep task? First, it identified the sentencing procedure provision in the present law in its most up-to-date form. Then it asked whether consolidating that most present form of the law into the code and making it apply to anyone convicted after enactment, irrespective of the date of the commission of the offence, would infringe Article 7 of the convention or the common law provisions to which I have referred.
In approaching that matter, the Law Commission asked itself a series of questions. First, will this impose a heavier penalty than could have been imposed at the date of the commission of the offence? In deciding what is a heavier penalty, it had of course regard to the jurisprudence of the European Court of Human Rights, to the domestic law—such as Docherty, which I referred to—and to whether the penalty is heavier than the maximum available at the time, given that that is the relevant test in convention law and domestic law. If there was no risk of a heavier penalty than could have been imposed, it could then consolidate the present law.
The Bill achieves that by deeming the date of commencement for the most up-to-date form of the law being consolidated, and/or the partial repeal of versions of the law that were also applicable for historic cases, to have occurred before the trigger event, which, as I noted earlier, is the commission of the offence. If I may say so, that is a neat means of addressing what is otherwise a potentially quite complex issue on retroactivity. If to impose the current law would risk imposing a heavier penalty, then an exception is created within the Bill to preserve the previous forms of the law by specifying the dates to which they would apply. That is the purpose of what are perhaps, on the face of it, these rather lengthy Schedules.
As the noble Lord, Lord Bassam, observed, a regulatory-making power is there to enable the Secretary of State to address a number of issues that could arise. First, in this complex area of law—I believe everyone acknowledged that it is a somewhat complex, layered area—there may have been some oversight. It is therefore to deal with that issue. Secondly, there may be circumstances in which an exception should have been made to prevent a heavier penalty and was not made; it is to deal with that as well. Thirdly, there may be some change in sentencing policy, between Royal Assent being granted to the present Bill and the introduction of the sentencing code, with regard to a particular offence. That, too, would have to be addressed. It is for those purposes that the regulatory-making power is there.
The noble Lord, Lord Bassam, raised a pertinent point about the Armed Forces. It is intended that the code should extend to the Armed Forces. Work is still ongoing with regard to that; we hope that that work will not hold up the passage of the sentencing code Bill itself. There might, in the course of its passage, be some further amendment to ensure that that is done. One or two complexities about incorporating the Armed Forces are being addressed at present.
As to a guarantee on when the sentencing code Bill will be brought forward, I regret to say that, like the noble Lord, Lord Bassam, when in his ministerial position at the Home Office, I am not in a position to offer guarantees. Clearly, though, we are anxious that once we have laid the groundwork for the sentencing code it should be brought forward as soon as practicable. It is in those circumstances that we will seek to address this.
Noble Lords also referred to the other work of the Law Commission. We commend that work and are conscious of the need to address the Commission’s work, and to look at law reform in light of its findings. We engage on a regular basis with the Law Commission and it presents an annual report to Parliament. Parliament has an opportunity to see the work that is ongoing and the work completed by the Law Commission. Again, I cannot give any commitment about particular areas of its work at present. I notice that the noble Lord, Lord Davies, took the window of opportunity to advertise his wares to the Law Commission. No doubt when the commission reads Hansard, it will be conscious of his concerns.
With that, I thank all noble Lords for their contributions to this debate and commend the Bill to the Committee.