Sentencing (Pre-consolidation Amendments) Bill [HL] (Law Commission Bill)
Tuesday 11th February 2020
(4 years, 10 months ago)
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, the sole purpose of this Bill is to pave the way for the Law Commission’s sentencing code, a consolidation of legislation governing sentencing procedure in England and Wales, as well as sentencing procedural law as it applies to the Armed Forces. I reiterate that the task before us today is to consider this necessary first step in the long-awaited consolidation proposed by the Law Commission. Noble Lords will have the opportunity to discuss wider issues relating to the substance of sentencing and release legislation in due course.
During proceedings on the Bill in the previous Parliament we heard many examples of highly experienced lawyers and judges spending too much time trying to disentangle which law applied to particular offenders. That challenge is made no easier by having to deal with multiple changes to the statute book, which may determine what sorts of disposals are available in particular cases.
It was with this in mind that the Government agreed in 2014 that the Law Commission should undertake a project designed to consolidate the law relating to sentencing procedure. The resulting sentencing code aims to assist judges and legal professionals in identifying and applying the law, thereby reducing the risk of error, appeals and delays in the sentencing process. It should also enhance the transparency of the process for the general public. However, for the sentencing code to work effectively, some technical changes need to be made to legislation that will be consolidated in the code.
In broad terms, the current Bill before the House does two things. First, it brings about something that we can call the “clean sweep”, which does away with historic layerings of sentencing legislation. Secondly, it makes various pre-consolidation amendments needed to tidy the statute book and make it ready for the ultimate consolidation process.
A key cause of the current complexity in sentencing procedural law is the need for courts to refer to historical sentencing provisions to ensure that sentences passed are in accordance with the applicable sentencing law at the time of the offence. The clean sweep mechanism in Clause 1 attempts to remedy that complexity by removing the need to identify and apply historic versions of the law. As a result, the current law of sentencing procedure as enacted in the sentencing code will apply to all offenders convicted after its commencement. Importantly, the clean sweep is subject to exceptions to protect the fundamental rights of the offender. These exceptions ensure that when an offender is sentenced under the sentencing code, they will not be subject to a greater penalty than was available, or to a minimum or mandatory sentence that did not apply, at the time they committed their offence.
Then there are the amendments and modifications of sentencing legislation contained in Schedule 2 to the Bill. These are referred to in Clause 2. These pre-consolidation amendments are generally limited to correcting minor errors and streamlining sentencing procedural law. They are a standard measure that often precedes a consolidation Bill. It should be emphasised that none of the pre-consolidation amendments makes changes to existing offences and penalties, nor do they introduce any new sentencing law.
The Government have made some changes to the Bill since it was most recently considered in the last Parliament. These are the result of the ongoing work of the Law Commission, working with parliamentary counsel, on readying the sentencing code Bill for introduction. The pre-consolidation Bill now includes a number of technical amendments that were tabled by the Government ahead of the scheduled Third Reading in the last Parliament. These include pre-consolidation amendments that seek to tidy up a few provisions of sentencing law as it applies to the Armed Forces, to ensure that the sentencing code can apply Armed Forces sentencing law as clearly and consistently as possible.
Further pre-consolidation amendments limit the provisions of primary legislation that can be amended by statutory instrument so that the sentencing code can contain more precisely targeted powers than is the case under the current law. Other pre-consolidation amendments reflect the recent coming into force of provisions in the Crime and Courts Act 2013.
Some further technical amendments that were not tabled in the last Parliament have now also been incorporated into the Bill. These amendments broadly fall into four categories. First, a minor drafting change has been made to Clause 5(3) of the Bill to accommodate a drafting change to the commencement clause in the sentencing code Bill itself. This will make clear, in the context of legislation to be consequentially amended by the sentencing code, to which offences the amendments apply where a person has been convicted over time of two or more offences. This change does not affect the way that the code will apply to a person convicted of an offence but is necessary to make clear that those amendments apply only in relation to offences for which a person is convicted after the commencement of the code.
Secondly, the Bill now includes some additional pre-consolidation amendments that will correct anomalies in references in existing legislation to provisions that will be rewritten in the sentencing code, so that the resulting references to the code in existing legislation are correct.
Thirdly, the Bill now makes provision at paragraph 133 of Schedule 2 to provide that where powers that are to be included in the sentencing code which are subject to different parliamentary procedures are exercised in the same instrument, the highest level of parliamentary procedure of the various powers will apply. For example, where provisions that are subject to negative resolution procedure are included in the same instrument as provisions that are subject to affirmative resolution procedure, affirmative resolution procedure will apply to the whole instrument. That is necessary, as the code will consolidate a number of different powers to make subordinate legislation that do not currently deal consistently with cases where powers that are subject to different levels of parliamentary scrutiny are exercised in the same instrument.
Finally, paragraph 134 of Schedule 2 provides the Secretary of State with the power to state the effect of savings or transitional provisions on the face of the sentencing code where uncommenced provisions in the code are brought into force. For example, if the Government wished in the future to commence a provision in the code only for offences committed on or after the date of commencement, commencement regulations could amend the code to state that date on its face. This should help provide courts and legal advisers with the full benefit of the clarity that the code will bring.
I finish by reiterating the Government’s gratitude to the staff of the Law Commission, and indeed to parliamentary counsel, for their exceptional efforts and continuous expertise and energy throughout the sentencing code project. It is a formidable achievement. I beg to move.
Lord Judge (CB)
My Lords, this process has been moving at a speed that would attract the unrestrained admiration of an indolent sloth—and an indolent sloth has no interest in the administration of justice in England and Wales.
As the Minister set out, this process began in 2014. In fact, even before that judges had been trying to persuade the ministry to let a code be created. The final report on the draft code became available in November 2018. As the Minister has said, it has been a work of astonishing complexity—a prodigious effort by the Law Commission, led for this work by Professor David Ormerod. Unsurprisingly, it has been greeted enthusiastically, rightly, by anyone with any real experience of the problems, not of sentencing decisions as such—although any judge who passes sentence will tell you that those decisions are difficult enough—but of sentencing technicalities; statutory pitfalls; optimistically drafted regulations; regulations that are drafted, come into force and disappear after three or four months; and, with no disrespect to Parliament, general parliamentary tinkering with the sentencing processes. This has resulted in a morass of confusion.
Every Government, of all colours, going back years, have added their own ingredients and then left it to the courts to sort out the puzzle. Sentencing decision is, however, not a game. Every single case involves a defendant, and from time to time people forget that every case involves a victim. The sentence matters to the victim, too, and it should be right. In every sentencing decision—of which there are tens of thousands every year—the first question is: “What are the powers of the court?” The second question that should be asked is: “What are the legislative requirements and constraints that apply to this case?” The decision of the court should always be lawful, but too often, because the relevant law is obscured by technicalities and legislative confusion, it is not. This is unacceptable, it is inconsistent with the rule of law and it has been besmirching our system for years. A remedy is urgently needed and this sentencing code, the Bill and the processes that we are now reviewing will provide the desperately needed remedy—not because it is needed by lawyers but because there are daily miscarriages of justice. It is a miscarriage of justice for a court to pass a sentence that is unlawful. Those miscarriages result directly from the chronic state of our legislation.
I will make two further points. First, the code and Bill simultaneously avoid any retrospective increase in sentencing: the date of the commission of the offence is the starting point for the sentence. Secondly, it provides for a degree of flexibility, so that as new legislation creates further crimes—as happens constantly —it can all be worked into the code, so that we do not have to come back in 10 years’ time and say, “Ten years have gone by and we need another code”. We shall soon be looking at the counterterrorism Bill. That can be fitted into this code. If I were in charge—and I am not—I would get this done first and then look at the sentencing decisions which will arise when we consider that Bill.
The committee of the House which I had the honour to chair examined the proposed Bill and was enthusiastically in support of it. Members of that committee are here to speak, and those who for different reasons cannot be here have asked me to convey on their behalf their continuing support. What is surprising and disappointing is that the proposal has received the wholehearted support of Parliament, yet we have had to wait. I am not blaming anybody for this, but here is the fact: the Bill was introduced into this House on 22 May. It completed all its stages up to Report. It was ready to go, and it was lost when Parliament was prorogued. There were more significant consequences of the Prorogation of Parliament, but this was one of them. Then the process started in the next Session, and again the Bill was taken forward. Everything was in sight, the cup about to be grasped. A number of small amendments were introduced by the Government at that stage which were sensible, so that the Bill would be ready for enactment, but it was torpedoed by Dissolution—again, the Dissolution process had rather greater consequences than this.
Now we are here a third time. The amendments suggested by the Government again make good sense; they serve to improve the Bill. I did my own cross-check, but I ran out of energy just because we need a sentencing code. So I sought the advice of Professor Ormerod, who was able to assure me that he was prepared to give his blessing. If he had not, I would have complained—not to him but to the Government. A particular point to raise is that amendments should be commenced which, whenever possible, follow the “clean sweep” model and, again, reduce to extinction the risk of retrospectivity. A second is that any new legislation can be made compatible with the code. That, I earnestly urge should happen.
There is a solitary advantage in us having to address these issues again: it will give the House the opportunity to hear from my noble and learned friend Lady Hallett, who will be making her maiden speech. She is a very long-standing friend. There are many things that could be said, but I want to highlight this: she was the judge to whom I turned to conduct the harrowing inquest into the tragic consequences of the murderous terrorist attack in London in July 2005. We will all remember the transport disaster which resulted in so many deaths. I know her well enough; I have heard her say that she would be the first to extol the fortitude and courage of the families of the victims and the survivors who appeared before her at that inquest. But she will not say it, so I will. The sensitivity of her approach to each individual human tragedy encompassed in that long, sad catalogue of murder can, even at the risk of embarrassing her, be highlighted.
More to the present point, she was until a few months ago the vice-president of the Court of Appeal Criminal Division, much of whose work involves dealing with appeals against sentence which would have been quite unnecessary if the legislation had not been impenetrable and the proposed code in force.
This is the third time in a few months that this issue has been addressed. Even the journey of an indolent sloth eventually reaches a sluggish conclusion. Can we not have any more sloth-like behaviour? Can we have urgent attention so that, third time lucky, we will be quick?
Lord Thomas of Gresford (LD)
My Lords, I am looking forward very much to the maiden speech of the noble and learned Baroness, Lady Hallett. Like myself, she is of a police family and a veteran of the criminal Bar, although she subsequently rose to dizzying heights that I never attained on the Bench. We need her contribution at this time, and no doubt in the future.
As the noble and learned Lord, Lord Judge, said, the Bill was pored over in the last Parliament. I have little to add generally, save to welcome it as a precursor to the sentencing Bill. The Leader of the House in another place has promised us that Bill in this Session. I assume that the sentencing Bill will introduce the excellent sentencing code, and I too congratulate the Law Commission and parliamentary counsel for the years of expert work that they have done in producing it.
I am grateful to the Minister for his letters of 23 October and 5 February. In his first letter, he informed me that work was continuing to include Armed Forces sentencing law in the code, and the new provisions in this Bill do indeed include tidying up pre-consolidation amendments. As chair of the Association of Military Court Advocates, I naturally have an interest in this area, and my comments will be directed to that.
The Law Commission, in paragraph 3.23 of its report, had decided that, by reason of pressure on resources, it was unable to draft the necessary amendments to the sentencing code to apply it to the service jurisdiction within the timeframe of this project. It also pointed out that the application of the code to the service jurisdiction could be achieved by way of the next Armed Forces Act, which must be passed before the end of 2021. It noted the ongoing review of military justice, the report of which will no doubt be published shortly. Is it now intended that the sentencing code will be brought to bear on courts martial in the sentencing Bill, or will the Government wait for the review report and for the Armed Forces Bill to be brought forward in 2021?
I thoroughly approve of the “clean sweep” principle, not least in connection with service criminal law. Service law and procedure have been built up piecemeal. I want to make some comments about an important procedural issue which in my view has gathered barnacles and needs to be challenged in the light of the Law Commission’s report. It is the current sentencing role of a court martial panel, against which I have argued on previous Armed Forces Bills. I take my text from the Law Commission’s report itself, paragraph 1.16 of which states that
“the law governing sentencing procedure is complex, difficult to locate, and difficult to understand, even for experienced judges and practitioners.”
The services, as represented in Parliament, have always been proud and protective of the military justice system. In history, there is not much to be proud of. In the 18th century, general courts martial, before a panel of 13, followed the rudiments of a trial as in a civilian court. Regimental courts martial, on the other hand, before five or three officers, were much easier to summon and consequently more popular with authority. They were, however, much more informal. Witnesses did not give evidence on oath, and severe and unusual punishments were meted out. An example was the wooden horse. This instrument, invented by the Inquisition, resembled a carpenter’s sawhorse standing on four legs, save that the crossbar was not flat but a triangle, the upper point of which was suitably shaved to a sharp edge. The convicted soldier had to sit astride the horse on this edge for the prescribed period, elevated in the air, often with weights tied to his legs to increase the pain and add to the injury.
Records were generally not kept, but a fragment has survived from 1722. Within a five-week period, seven prisoners were sentenced to the wooden horse, some for insolence to an officer, others for going out of camp. Another punishment popular with these regimental courts martial, also recorded in this 1722 fragment, was running the gauntlet. The prisoner would be lashed by a company of soldiers drawn up in two files through which he would be slowly marched, an officer in front of him with his sword pointed backwards and another behind with his sword pointed forward. It could be lethal. Another case is recorded in that fragment where the prisoner was found to have absented himself from guard duty, his punishment being to have his neck and heels tied together.
In the army, flogging was standard. One sentence recorded in 1750 was 600 lashes for being absent without leave. In 1777, one Elijah Reeves received 500 lashes for visiting a whorehouse that had been declared off limits. Military justice very slowly improved, but there was always resistance to change. Flogging was not abolished until 1881, despite campaigns against it throughout the earlier part of the century, led by parliamentarians such as John Bright and Joseph Hume. The military always argued that it was essential for officers to have the power to flog,
“to curb the natural passions of men”,—[Official Report, Commons, 16/2/1880; col. 1167.]
as the Tory MP Colonel John North put it.
As for the informality of these proceedings, a Bill was introduced in 1805 to require that the evidence given in a regimental court martial should be on oath. In the debate on that Bill, Lord de Blaquiere, a supporter, told the Commons that he had
“seen a man sentenced by a regimental Court-martial to receive one thousand strokes, for an offence, which, on board a ship, would not have been punished with more than a dozen lashes”.—[Official Report, Commons, 12/3/1805; col. 860.]
Sir John Wrottesley, on the other hand, a major in the militia as well as an MP, opposed the Bill, arguing that “petty fogging attorneys” would always be lying in wait to interfere with military justice.
As a pettifogging attorney myself, I recall moving amendments to the 2006 Armed Forces Bill, one of which proposed that members a court martial panel should, as in the United States, be drawn from other ranks as well as officers. Another proposed amendment was that members of a court martial panel should be mixed, drawn from all three services instead of solely from the prisoner’s service. These amendments were opposed by the Minister, Lord Drayson, strongly supported by a noble and gallant Lord who later, in a touch of banter outside the Chamber, told me that my amendments were outrageous and asserted, with the approval of two other noble and gallant Lords from different services, that I should be shot.
There have been significant improvements over the years, despite such resistance. However, both the services and the Ministry of Defence have insisted up to now that sentencing should be the responsibility of the court martial panel—its decision being, of course, by a simple majority. Under the current law, the role of the judge advocate at the sentencing stage is merely to advise panel members of the extent of their sentencing powers, rather like a clerk to the justices. Under Section 160(4) of the 2006 Act, the judge advocate has a casting vote only in the event that the panel is equally divided on sentencing. He has no vote, of course, on the issue of the finding of guilt or innocence. I remind your Lordships of the comment of the Law Commission that the law is incredibly complex and difficult to understand, even for experienced judges and lawyers. One wonders at the faith placed in a court martial panel to get a sentence right, particularly when it may be dealing, under Section 42 of the Act, with a most serious crime, all the way up to rape, manslaughter and murder.
In the civilian courts, where a person has been convicted of manslaughter, I have known sentences of life imprisonment, but also sentences of lesser severity, all the way down to an absolute discharge. How can a court martial panel deal with that? Remember that, unlike a much more experienced bench of magistrates, whose powers of sentencing are limited to two years’ imprisonment, the officers on the panel, save for the president, may well be new to the job. For many, perhaps the majority, this will be the first and last time they are called upon to sit in judgment. Surely it would be more sensible to leave sentencing as the responsibility of the judge advocate, assisted by the panel on any service issues that may arise.
I have no doubt that I shall return to this point when we consider the sentencing Bill in this Session, or the armed forces Bill in the next. As we await anxiously the findings of the current review, I wish this Bill a fair passage.
Lord Bates (Con)
My Lords, I rise as testament to the grace of the open speakers’ list offered by the Whips’ Office that a non-lawyer should be able to speak on a Law Commission Bill, in a debate in which will take part two former Lord Chancellors, a former Lord Chief Justice and a Deputy President of the Supreme Court. I also stand between your Lordships and the very welcome maiden speech of a former High Court judge.
I am speaking because I read the written evidence provided to the Special Public Bill Committee on this measure by the Prison Reform Trust, which welcomes the Bill but remains
“concerned that Parliament risks missing a vital opportunity to scrutinise the impact of the current sentencing framework on outcomes in the criminal justice system.”
With your Lordships’ forbearance, I want to test for a few moments the effectiveness of those custodial sentences.
It goes without saying that it is right that those convicted of a criminal offence are punished for that offence. It is important that victims see justice being done. A custodial sentence can serve as a deterrent and protect the public from those who pose a serious threat. However, the objective of sentencing should also be that the offender may on completion of their sentence be rehabilitated and leave their criminal behaviour behind them.
Yet it is in this final area that we seem to be having most difficulty. The prison population in England and Wales was 83,430 in 2019. In 1900 the prison population was around 17,400; over the next 90 years it doubled to around 40,000 and over the past 30 years it has doubled again. It is projected to continue to grow to 85,800 by 2022 and at that rate we will hit around 100,000 in England and Wales by 2030. The average cost per prison place in England and Wales is £40,843. There are fewer than 100 prisoners serving whole-of-life sentences, so while we are locking more people up we are also letting more people out. Last year 69,622 prisoners were released from prison. Reoffending rates are 48% for all adults released, rising to 65% for those serving sentences shorter than 12 months. A survey published by the Ministry of Justice last year put the economic and social cost of reoffending at £18.1 billion. Where have we gone wrong and what can we do to put it right?
Prevention would be best. We know that fewer than 1% of school pupils have been permanently excluded from school in the general population, but in the prison population they account for 42%. We know that 2% of children have been taken into care in the general population but they form 24% of the prison population. We know that 64% had used illicit drugs before entering prison, that 46% had alcohol problems and that 40% have mental health problems. We know that 62% of prisons are currently rated as overcrowded, with cells intended for one person often used to house two. We know that many prisoners are locked in their cells for all but a few hours of each day.
I suggest another reason why prison is failing to be as effective at rehabilitation as we wish: while we have strengthened a little our belief in judgment and demands for retribution, perhaps with the advance of social media and the web, at the same time, perhaps with the decline in religious belief, we have weakened a little our understanding of and belief in concepts such as forgiveness, mercy, grace and redemption. Redemption: the belief that though you have done something terribly wrong, at the end of your punishment and displaying remorse there is afforded to you a second chance to start afresh and make a positive contribution to society.
In his book No Future Without Forgiveness, the Nobel laureate Desmond Tutu wrote the following:
“Forgiveness is taking seriously the awfulness of what has happened when you are treated unfairly. It is opening the door for the other person to have a chance to begin again. Without forgiveness, resentment builds in us a resentment which turns into hostility and anger”.
If all that sounds a bit too woolly for my noble and learned friend on the Front Bench, let me pray in aid a Conservative Lord Chancellor who said in the House of Commons:
“It is because I am a Conservative that I believe in the rule of law as the foundation stone of our civilisation; it is because I am a Conservative that I believe that evil must be punished; but it is also because I am a Conservative, and a Christian, that I believe in redemption, and I think that the purpose of our prison system and our criminal law is to keep people safe by making people better”.—[Official Report, Commons, 26/1/16; col. 149.]
Those were the words of my right honourable friend Michael Gove in 2016, someone who in the intervening years has demonstrated the benefits of political redemption.
When my noble and learned friend responds to this debate, can he say whether the purpose of prison is still to keep people safe by making people better? If so, when will we have an opportunity to scrutinise the effectiveness of the Government in doing so? Custodial sentences have an important part to play in keeping the public safe and ensuring justice is seen to be done; but an over-focus on longer sentences resulting in an ever larger prison population without an equivalent focus on redemption and rehabilitation may only serve to ensure that those people leave custody bitter but not necessarily better.
Baroness Hallett (CB) (Maiden Speech)
My Lords, as a barrister for 27 years and a judge for 20 years, I am accustomed to speaking in public, yet I confess that I find the task before me now somewhat daunting—a feeling that has been exacerbated by the relatively long wait today. The good news from your Lordships’ point of view is that, as every hour passed, I deleted yet another passage from what I had intended to say.
My feelings of trepidation stem from the knowledge that becoming a Member of this noble House is both an honour and a privilege. I am extremely grateful to those who played a part in my appointment and to my supporters, especially my noble and learned friend Lord Brown of Eaton-under-Heywood, who left his sick bed to be with me on the day of my introduction. I shall do my utmost to prove that their trust in me is well placed.
I am also extremely grateful to the staff, to officials and to noble Lords and Baronesses who have proved so helpful and welcoming since my arrival. I should also like to thank my noble and learned friend Lord Judge and the noble Lord, Lord Thomas, for their kind remarks. If I had to leave the justice system—which I did because of an Act of Parliament and I was getting too old—I can think of no better place to be. The justice system will, however, remain close to my heart.
My father, as noble Lords have heard, was a police officer, who taught me at an early stage the importance of the justice system. I am proud to have played a part in it, particularly as I was told more than once that people from my background, especially women, could not cut it as lawyers.
I shall therefore follow with interest steps taken to ensure that the justice system of this country remains one of the best in the world. A fully functioning and properly funded justice system is essential to a healthy democracy. We have the excellent business and property courts, but they are only part of the equation; we must not allow other parts of the system to crumble. It is the system as a whole that makes this country a desirable place to invest, to do business and to litigate, and it provides access to justice for all our citizens.
This is not the time to list the problems that beset judges, magistrates and practitioners. The Bill aims to address just one of them. The idea is simple, as noble Lords have heard. It is to streamline the sentencing process; it is not about outcomes. It is the sentencing process that affects hundreds of thousands of cases each year. The aim of the Bill is to make it quicker and easier for a sentencing judge and practitioners to find the relevant sentencing provisions.
As your Lordships have heard, at present sentencing provisions are extraordinarily complex. Experienced judges and lawyers struggle to interpret them even when, in the Court of Appeal, there is rather more time than is available to the sentencing judge in the Crown Court, who may have nine other cases in her busy list that day. The provisions are scattered among several statutes, and in the case of one defendant different statutes may be in play.
Back to that busy judge, who has a list of 10 cases —one of them involves four defendants, one of whom is under 17, one was 17 at the time of the commission of the offence and is 18 at the time of sentence, one may attract the dangerousness provisions, and one may be lucky to get away with a suspended sentence and possibly a community penalty. I cannot tell your Lordships how many statutory provisions would be involved in the judge trying to work out how to sentence the four—and do not forget that she also has nine other cases to deal with that day. The scope for error is huge.
As vice-president of the Court of Appeal Criminal Division until last October, I promise your Lordships that I lost count of the number of unlawful sentences put before us, costing time and money to rectify and, in the process, causing unnecessary distress to the victims of crime, who were uncertain of the sentence passed on the perpetrator of the crime against them and who were extraordinarily, and obviously rightly, angry when we were forced to quash a sentence because it was unlawful.
When Professor David Ormerod QC first announced that, as a Law Commissioner, he intended to embark upon a codification of the sentencing process, many experienced criminal lawyers—and I confess that I was one of them—thought it was an impossible task. But with the help of parliamentary counsel the Law Commission has done it, and after much consultation, the code has been greeted with acclaim by the informed legal community.
It is worth repeating that, if enacted, the code will not: alter any maximum sentences currently available for offences; subject any offender to a harsher penalty than could have been imposed at the time of the offence; or affect the release dates as currently set. Those are all matters that may have to be considered on another occasion, as will the point about the principles of sentencing, rehabilitation, deterrence and the like. But that is not for today.
This Bill is about process. It will, at a stroke, simplify sentencing, save unnecessary distress, money, time and effort, and it will not cost any money. I know of no criminal lawyer or judge who objects to it. On the contrary, they are impatient for it to be enacted. They have been disappointed twice; there is no reason for them to be disappointed a third time.
Lord Falconer of Thoroton (Lab)
I speak for the whole House in congratulating the noble and learned Baroness, Lady Hallett, on her absolutely excellent maiden speech. The House has got a taste of what is to come. For me it is a huge personal pleasure to follow her in this debate. I have known her for very many years. She is one of quite a small number of people who have been profound change-makers in the law, and without any fuss. As she said, she was an advocate for 27 years; she did not mention that she was the chair of the Bar. As it happens, she was the first woman chair of the Bar, but that makes no difference to the fact that she was among the best of them. She was a judge who was in effect in charge of criminal sentencing for a long period of time in the Court of Appeal. She is testament to the stupidity of the judicial service arrangements that forced her to retire too young, and testament to the inadequacy of the judicial appointments arrangements in that she did not become the Lord Chief Justice. One of the things about the noble and learned Baroness is that she knows just as much about human beings as she does about the law. I am absolutely sure that the best is yet to come.
I move to the Bill. I, like all other noble Lords who have spoken in this debate, commend this short but important paving Bill towards a sentencing code. The effect of this Bill and the Bill it paves the way for will be very significant to the performance of the criminal justice system. The noble and learned Lord, Lord Judge, and the noble and learned Baroness, Lady Hallett, have explained the current position. As a result of a random test in 2012, the Law Commission made available to us the statistic that 36% of sentences are unlawful. That does not mean that they were just too long as judgments, but that they were passed contrary to the terms of the statute allowing them. We are a country that prides itself on the rule of law. If over a third of the sentences that are passed are unlawful, there is something wrong with the law and we need to change it.
There is unanimity among those who practise in the criminal justice system, whether advocates, prosecutors or judges, that there should be change. As the noble and learned Lord, Lord Judge, has pointed out, this Bill and that which it paves the way for has been, as the Prime Minister would say, oven-ready since May 2019. Some time will pass before this paving Bill gets through and thereafter—and only thereafter—does the sentencing code come. I strongly urge the Government, as the noble and learned Lord, Lord Judge, has done, to deal with this as quickly as possible. It is something on which Parliament agrees; there is no reason for delay.
I will mention three specific points. First, I congratulate the Law Commission on its work, particularly the clean sweep principle, which allows the courts to adjudicate what the right sentence is based on one statute only, in effect the sentencing code when it comes. I congratulate the Law Commission on coming up with a principle as sensible and simple as the clean sweep.
Secondly, I agree with the Law Commission that it has to protect the principle of retrospectivity and particularly that you cannot be sentenced at a higher level than the sentence that applied at the time you committed the offence. It preserves that in the Bill and it is right to. The House is going to come back to that issue in the Terrorist Offenders (Restriction of Early Release) Bill that was published today. The effect of that Bill is, for no doubt good policy reasons, to transform the time before release for terrorist offenders on determinate sentences from half way through the sentence and automatically to two-thirds of the way through, and then with the approval of the Parole Board only.
A question arises as to whether that changes a sentence after the commission of the offences. I am aware of cases, particularly that of Uttley in the House of Lords in 2004, which suggest that it is relevant to focus on the maximum in the sentence, and only if the new sentence is higher than the maximum would it be retrospective. I have anxieties about that, because a statute is being passed that will unquestionably increase significantly the time that people spend in prison. The principle of preventing retrospectivity is that you should not, after the event—maybe by a statute driven by public opinion—change somebody’s sentence for the worse. It should be the courts, in accordance with law, that fix the sentence, not public opinion subsequently. But that is a debate for another day.
My third point is again one that the noble and learned Lord, Lord Judge, has already made. The intention of the sentencing code is that it is to be one statute to which judges can refer in order to determine what the sentence is. That works only if in years to come, amendments to sentencing abide by the principle of the sentencing code. It is worth drawing attention to the fact that substantial changes were made to sentencing in 1991, 1993, 1997, 1998, 2000, 2002, 2003, 2005, 2007, 2008, 2009, 2012, 2014, 2015, 2018 and 2019. I say in parenthesis that even Brexit did not stop the change in sentencing. It is extremely unlikely that that pattern will not continue after the sentencing code is passed.
In order for the code’s principles to be given effect, four principles need to be adhered to. First, any changes in sentencing should be made by changing the terms of the sentencing code, not in a new document. Secondly, if any changes do not come into force straightaway, they should be put into Schedule 22 to the sentencing code so that people can see that it is one which has not come into force straightaway. Thirdly, any new arrangements should maintain the principle of the clean sweep, and fourthly, any commencement information should be included in the Bill. Only if the principles of the sentencing code are adhered to as we go forward will the very brilliant work of Professor Ormerod and his team take us through into the future.
I strongly support this Bill and I hope that it becomes law, and that the sentencing code which is to follow it becomes law as quickly as possible.
Lord Mackay of Clashfern (Con)
My Lords, it gives me the greatest possible pleasure to follow the excellent maiden speech of the noble and learned Baroness—which, of course, having known her for some time, I expected to be of the highest quality.
This Bill forms part of the extremely valuable consolidation procedure. For a short time, I had the honour of being the chairman of the consolidation committee, but I was saved from continuing in the role by being appointed Lord Chancellor. I discovered that, of all the committees which serve Members of both this House and the other place, the difficulty of convening a quorum for the consolidation committee was the probably the highest. That suggests to me that the process of consolidation is not as precious, or perhaps as fully understood, as it should be. That is because, unless we have reasonable consolidation, our statute book will become less and less intelligible.
I had the honour of being a member of the Scottish Law Commission for a time, and like the noble and learned Lord, Lord Falconer of Thoroton, I was the Minister for the Law Commission during my time as Lord Chancellor. I think that it was a marvellous institution which was set up by Lord Gardiner, with a certain amount of query from some lawyers, as is usually the case if you make an improvement, and the result has been absolutely excellent. One of the features of the Law Commission as I knew it was that it usually had the services of a parliamentary counsel, then detached from the ordinary office in Whitehall. I suspect that the parliamentary counsel involved in this Bill was seconded to the Law Commission.
In the past I have had a little experience of the relationship between the Law Commission and Her Majesty’s Government. One of the features of the criminal law of England and Wales is that it is principally statutory law and not all of it is absolutely at the peak of modernity. In fact, it is extraordinary how old some of the essential provisions that are in day-to-day use are. When I was concerned in these matters, there was a move to codify the criminal law. A certain office of state had responsibility for the criminal law and was reluctant to see anything of the kind happen—but somehow the Law Commission managed to start a procedure for codifying the criminal law. It was eventually able to excise a bit that seemed reasonably attractive to the office in question—but, so far as I know, it never got any further.
We have here an example of modifying and modernising the process for sentencing, as has been pointed out. We are not able today to give effect to my noble friend Lord Bates’s sentiments, which I very much share. It is not part of this Bill, which is concerned only with the sentencing process. It deals with it in a very effective way; it could not possibly do it simply by a consolidation Bill. This pre-consolidation Bill is able to make the corrections that, when fitted in, will bring in a sentencing code that will be absolutely excellent. I hope—I feel certain this will be the case—that there will be many fewer unlawful judgments from now on. Even judges can make mistakes, but the chances of mistakes in this situation are very much reduced.
The noble and learned Baroness pointed out in her maiden speech how much she values the judiciary of this country. As it happens, I was coming from Inverness last night on a plane that was a little later than it might have been if the weather had been different, and I was talking to a gentlemen who was much in business and somehow knew my line of life. He began to talk about the judiciary and said, “I have had experience of many countries and of employment law in many countries. The unique feature of the United Kingdom is the absolute honesty of the judiciary.” It is an extremely precious quality, and I honestly am not absolutely certain that it is fully appreciated in every quarter as it should be.
It is extremely important that the status and remuneration of the judiciary, including pensions, should match that very big quality. It is not that they are paid for honesty, but they are employed and continue to be employed because they are honest. Sometimes some statutory instrument comes along and their termination appears, but it is nothing at all to do with any fault in them. It is simply what some mistaken people in the past have brought in as the ultimate age for service. This is an extremely important matter. I certainly believe that that quality is in a way preserved by this Bill, which will help honest judges get the answer that is right.
Lord Hope of Craighead (CB)
My Lords, it is an honour for me to follow the noble and learned Lord, Lord Mackay of Clashfern—my former devil-master, from whom I learned so much. I take this opportunity to congratulate the noble and learned Baroness, Lady Hallett, on her excellent speech. She demonstrated very well what the House is gaining by her membership, because of her remarkable and deep experience of criminal law at every level, from the Bar right up to the very high level she reached on the Bench. Her remarks about the difficulties that sentencing judges face, which she observed so well from her position in the Court of Appeal, are extremely valuable in the context of the debate we are having.
I have no hesitation in welcoming the Bill, and I am delighted that it is being sponsored by the Government. As chairmen of the Law Commission, I have known only too well for decades, that it is not easy for Law Commission Bills to make progress in Parliament. Parliamentary time is often at a premium and, without sponsorship from the Government, it would be difficult—probably impossible—for any progress to be made at all. We must be grateful to the Government, not only for being willing to sponsor the Bill but for being willing to find time for it, at the third time of asking, only six weeks into the new parliamentary Session. This is, of course, only the first stage of the further process which will, we hope, end up with the approval of the code itself. I hope, as others have said, that the progress made so far in this Session—let us ignore the fits and starts of the previous ones—will be maintained, and that rapid progress will be made to get us to the stage at which we may be able to consider and approve the code itself.
It is very easy in a debate of this kind to be drawn into a broad discussion of sentencing policy, as the noble Lord, Lord Bates, demonstrated in his entertaining and fascinating speech. If I had freedom to do so, I would say something about the disturbing, inevitable creep in the level of sentences: up and up they go, without any obvious benefit. However, I will leave that all aside because, as has been said already, the Bill, as its long title makes clear, does no more than lay a sound basis for the enactment of the sentencing code itself.
I pay tribute to the Law Commission and parliamentary counsel for the immensely impressive and painstaking work put into the schedules, particularly Schedule 2. I did my own research when comparing this Bill with its predecessor, in June of last year. I was looking for what used to be paragraphs 90 and 92 of Schedule 2, which I commented on at Second Reading last time. They dealt with the transfers of community orders and suspended sentences from England and Wales to Scotland under the Powers of Criminal Courts (Sentencing) Act 2000. I could not find them, because the numbers had changed. I was rather startled to find that what were paragraphs 90 and 92 had moved to paragraphs 101 and 103. As I looked further into the schedule, I found another nine new provisions, including paragraphs 133 and 134, to which the Minister has already made reference. It is to be admired that, although the Bill was becalmed in the summer, work to make sure that the schedules were absolutely up to date did not cease; I am sure we will all benefit from the work that has been put in.
I will say no more about the problems that sentencing judges and magistrates face; it is a morass of confusion, as the noble and learned Lord, Lord Judge, said. However, I want to draw attention to one point. In his celebrated book The Rule of Law, the late Lord Bingham of Cornhill identified eight principles of the rule of law that he thought we should bear in mind. The first was this:
“the law must be accessible … intelligible, clear and predictable.”
The law which magistrates and judges should be required to administer should be accessible, clear and intelligible. It is absolutely plain from the noble and learned Baroness’s speech that that is very far from the case, and indeed that we are in serious risk of failing to observe the rule of law in the situation as it is at the moment. I mention that just to underline the point others have made—I am referring in particular to the noble and learned Lord, Lord Falconer of Thoroton, and his impressive speech—of the urgency to make progress with the Bill to the stage which we all wish to reach.
Finally, I pay tribute to the care which has been taken in the drafting of Clause 1(3) and (4), which are designed to ensure that those convicted after the code comes into force will be dealt with according to the most up-to-date law, and also the corollary: that the convicted person is not dealt with by the imposition of a penalty of any kind that is more onerous than that which applied when the offence was committed. Perhaps there is a difference in the uplifting and administration of a penalty which the court has imposed, which may be a riposte to the point made by the noble and learned Lord, Lord Falconer, on the Bill he referred to. If the judge is not required to increase the sentence, but only to deal with the way that it is administered by changing terms of parole and so on, one might not think that that is the case, but we are not really concerned with that here, because every effort is being made—and should continue to be made—to ensure a clean sweep in both these respects.
This is a supremely well-drafted and very carefully put together Bill, and I offer it my full support.
Lord Adonis (Lab)
My Lords, it is a great pleasure to join in congratulating the noble and learned Baroness, Lady Hallett. She made what has been, in my time in the House, the briefest but most authoritative maiden speech. I can see why she has such an impressive record as a judge. We are extremely fortunate to have her in the House for the future.
Clearly, the arguments for this Bill are overwhelming. They have been made by the Minister, the noble and learned Lord, Lord Judge, and all other noble Lords who have spoken. We look to the Minister to facilitate the passage of this Bill so that we can get on with the substantive Bill. It says something about the complexities that we are dealing with that it takes a prior Bill to get to the consolidation Bill to bring about the reforms that we want. This further demonstrates the need for these pieces of legislation. My noble and learned friend Lord Falconer said that in a sample of sentences, 36% were found to be unlawful, which is truly shocking. As the noble and learned Baroness, Lady Hallett, said, for a nation that prides itself and exhibits itself to the world in respect of the rule of law and setting high standards, that is not acceptable.
I hesitated to speak, because these points are agreed among us, and because this is a debate dominated by very experienced judges and lawyers. However, fortified by the remarks of the noble Lord, Lord Thomas, who took us into courts martial in the 18th century, and the noble Lord, Lord Bates, who talked about the wider principles of sentences and outcomes, I will make a few wider remarks. To the lay person coming into this field, the fundamental issue is not the operation of the law—although clearly that needs to be improved—but the outcomes. To anybody looking at this from the outside, the fact that in the last 40 years the prison population has doubled, the average length of sentences has significantly increased, and concern about crime and recidivism has not improved in society, proves that we are out of step. I hesitate to say it in this company, but Scandinavia and other countries have lessons to teach us on how to manage crime in society. We are way out of step with those societies in the numbers that we incarcerate and the lengths of sentences. The question must be asked—and if not in this debate, there needs to be an appropriate time—what are we going to do about it? Are we going to let this continue?
I look at most of the things we did when I was a member of the same Government as my noble and learned friend Lord Falconer with great pride. In most areas of public policy, we left things better at the end than at the start, but I do not look back with any pride at the fact that we had a larger prison population at the end of our time than the beginning, nor that we had a criminal justice system that evidently was not working better. My noble friend recited a long list of statutes which have been passed, making the point that the law on sentencing has changed virtually annually in the last 30 years. What struck me as I listened to the debate and read the material relevant to it was that very few of those statutes have taken a wide-ranging and comprehensive view of sentencing. All of them, except perhaps the Criminal Justice Act 2003, have been incremental reforms to sentencing, in response to issues of public concern and often not dealt with in the best context. They have not been properly co-ordinated and have added to the complexity of the statute book, which the noble and learned Baroness referred to. They have all had the effect of ratcheting up, bit by bit, the prison population and the length of sentences.
The question I wish to put into the debate—I came here partly to form views as to how we might tackle the problem—is: how are we going to address this wider issue? The noble Lord, Lord Bates, did it by reference to wider moral principles, which I fully respect, and he referred to Michael Gove’s speech. However, we are legislators—we should obviously be guided by moral principles but we also need to have regard to how we can change the law—and we need an opportunity to get to grips with the issue of sentencing and its relationship to crime and public confidence in a comprehensive way. I am not sure how we can do it—clearly, this Bill is not the appropriate vehicle—but we need a process which gives a comprehensive view of sentencing at large.
I thought I had an answer as I listened to the noble and learned Lord, Lord Judge, referring to the committee he chairs. That committee is not directly relevant to this issue but it prompted the thought in my mind that, as we are currently looking for new subjects for Select Committees of the House—ad hoc committees—to examine, it would be fit and proper for the issue of sentencing at large to be examined comprehensively by a Select Committee of this House. Perhaps the noble and learned Baroness, in the new duties she is going to undertake in this House, could play a prominent part in that, given that she has more experience in this field than anyone.
We have a duty to society at large to undertake this exercise at some point. It may be that doing it in parallel with the sentencing code being put on a statutory basis in the legislation that follows this would be an opportunity to do so. There is certainly no body in Parliament or the country that is more fit to undertake this exercise. I put the thought to the Minister and other noble and noble and learned Lords that the time has come for us to seek to address what should happen to sentencing policy and to give our advice to Parliament and the public at large.
The facts are stark: we have a prison population that has doubled, we are seriously out of step with international opinion and best practice, and the prison estate is in a scandalous state. Given the reports of the prison inspectorate that come forward month after month, if any other field of public service—I have significant experience of education but one could look at any of the others—was addressing reports of this kind, we would close down those institutions immediately. Obviously, we cannot close down prisons because we have to have places where we can incarcerate criminals. However, the time may have come when we need to take a comprehensive view of this issue and a Select Committee of this House might be the way to take it forward.
Lord Marks of Henley-on-Thames (LD)
My Lords, I will be relatively brief for a number of reasons. First, it is late. Secondly, this Bill has had a unanimous welcome and support from around the House; and, thirdly, we debated this Bill in almost identical terms on 12 June last, and again we have had an excellent debate in which a number of brilliant speeches have powerfully made the case for the Bill.
I too welcome the noble and learned Baroness, Lady Hallett, to this House and congratulate her on her excellent maiden speech. I have admired the noble and learned Baroness for many years as an incisive advocate, as an extremely distinguished judge in the High Court and the Court of Appeal, as a forward-looking chair of the Bar Council, as an effective treasurer of my Inn, the Inner Temple, and in many other roles. She expressed concisely and brilliantly, with all her vast experience of the Court of Appeal Criminal Division, the reasons why this Bill is so welcome when she described the crazy complexity of the existing statutory provisions and expressed the view that this Bill and the sentencing code will, at a stroke, simplify sentencing. The Bench’s loss is of course our gain and we look forward to the noble and learned Baroness’s future contributions to the work of this House.
Perhaps I may add a few words from the perspective of these Benches. First, we are completely committed to the mission of the Law Commission to ensure that the law is as fair, modern, simple and cost-effective as possible. This Bill is essential to that mission and in an area that is central to our law and liberties. We have heard accounts from speakers from the noble and learned Lord, Lord Judge, onwards—including from my noble friend Lord Thomas of Gresford, on military law in particular—of anomalies in existing sentencing law; its fiendish complexity and inaccessibility, to judges and counsel, let alone to the public and defendants who most need, and are entitled, to understand it; the passing of unjust and unlawful sentences, with a frequency that defies belief; and the delays and cost caused by bad sentencing.
The Bill has at its heart the Law Commission’s stated aim
“to codify the law, eliminate anomalies, repeal obsolete and unnecessary enactments and reduce the number of separate statutes.”
But I add a few notes of plea and of warning. First, the code will work well only if future sentencing changes are not only incorporated into the code, as the Bill promises, but are themselves kept simple. It has not just been difficulties of understanding that have made sentencing law inaccessible. There have been too many complex variables in the substance of sentencing law, as to when and under what conditions particular sentences may or may not—or must, or must not—be passed. These have made it very difficult for lay people and lawyers to understand the courts’ powers and the rationale for them.
Secondly, I applaud the clean-sweep provisions. It is essential that everyone understands what sentences can be passed by the courts, and I agree that the best reference date for that understanding is the date of sentence. That is subject to the exception outlawing retroactive sentences imposing penalties that would not have been available at the date of the offence. This principle was described in the Explanatory Note, and by the Minister at Second Reading last year, as ensuring
“that the clean sweep does not contravene the general common law presumption against retroactivity”.—[Official Report, 19/6/19; col. GC 15.]
I agree with what the Minister said today: this principle is necessary to protect the “fundamental rights” of the offender. The principle was then rightly described by the noble and learned Lord, Lord Hope—and effectively repeated today—as incorporating a 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.”—[Official Report, 19/6/19; col. GC 19.]
As the noble and learned Lord, Lord Falconer of Thoroton said, we will consider that principle further in connection with the Bill concerning changes to release dates, published today, which we will debate later this month—and I share the noble and learned Lord’s anxieties.
Thirdly, those drafting legislation would be doing lawyers and lay people alike a kindness if they used less cross-referencing. Definitions reading that “phrase A in Act B shall have the meaning ascribed to it in Act C”, should cease to be a feature of our statutes. Simplicity and clarity are all; codification is part of the battle but, alone, it goes nowhere near achieving a statute book that is readily intelligible to the public. And that is what we must aim for, particularly in a society where computer literacy is now happily widespread, so that statutes can be easily researched by many, and also where citizens’ access to legal representation and advice has been substantially diminished by extensive cuts in legal aid.
Finally, as has been said, this Bill will not of itself improve sentencing policy. The Minister in opening made the point that it makes no changes to substantive sentencing law; nor does it. From these Benches, we will continue to argue for a sentencing policy: that puts rehabilitation at its heart; that will involve more community sentences, with improved and better-resourced supervision of community sentences and supervision during and following custodial sentencing; and that will reduce prisoner numbers, improve the prison regime and introduce a presumption against ineffective short sentences. These themes were addressed by the noble Lords, Lord Bates and Lord Adonis, in their welcome broadening of the ambit of this debate.
We want to see a penal system dedicated to helping offenders turn their lives around—so also cutting reoffending. Perhaps those are matters for another day, but they will nevertheless bear consideration throughout our consideration of sentencing. We will argue for the development of the code, when it comes, in that direction.
Lord Bassam of Brighton (Lab)
My Lords, I take great pleasure in joining in the general congratulations to the noble and learned Baroness, Lady Hallett, on her excellent maiden speech. The words I jotted down immediately were “Brevity welcome”. It was a powerful speech, and made with great concision. I know that we shall benefit greatly from her wise words in future—especially, I hope, when we consider legislation such as this, which deals with sentencing issues.
Like others, I am delighted that the Bill is back before us; I am only saddened that it has taken three goes to get here. However, this Second Reading debate is somewhat better, perhaps, for having waited to come round this third time. We have certainly heard a wider range of speeches than we did the first time, some touching on the grisly impact of sentencing in courts martial, with a learned discourse from the noble Lord, Lord Bates, on the statistics—grisly statistics, one might say—of our judicial system and of law and order in this country.
We have also had the advantage of hearing the noble and learned Lord, Lord Mackay, make a powerful speech advocating better-paid judges. He should probably become the chief negotiator for the judiciary as it seeks to improve its pay and conditions. There was also a bid by my noble friend Lord Adonis for a sentencing Select Committee. He is lucky, because the usual channels are on our Front Bench tonight, and I am sure that my other noble friend will have taken careful note of that bid.
We very much welcome the Bill, as we did last time. We know that the justice system faces extreme challenges: the decimation of legal aid has reduced access to justice for those who need it most; the courts are facing budget cuts and are also, sadly, haemorrhaging experienced staff. The Government have 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 that, and more, we must get sentencing right. I welcome the Bill in that regard, as we did previously. We too want to put on record our thanks to the Law Commission for its work, and to all the other stakeholders who have contributed to the years of research and consultation that have brought the Bill before us, and which will inform the consolidation Bill that will follow it.
The profession has welcomed the Bill. 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—quite right. That patchwork is derived from three statutes, including the Powers of Criminal Courts (Sentencing) Act 2000 and the Criminal Justice Act 2003. I think I may have been responsible for one of those pieces of legislation, but I shall not apologise for that; it was my duty as a Home Office Minister.
The Law Commission estimated that there had been at least 14 major Acts covering sentencing in the past 40 years—and my noble and learned friend Lord Falconer read most of them out. At least one of them repealed legislation that had created sentences only six months before. The point about de-layering is well meant, and well met. The Law Commission wrote that the law on sentencing procedure was
“extremely difficult to locate, interpret and apply, even for an experienced lawyer or judge”.
The noble and learned Baroness, Lady Hallett, gave a good example of that, which illustrated the sheer mind-boggling complexities that confront judges when they have to unravel and locate the different sources for a sentence.
What hope, then, is there for a lay person? Apparently very little, we are told, as it can be “practically impossible” for someone to locate and understand parts of the law. 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 but you have to read about it somewhere else. The second example is about the effect of commencement dates recorded separately from the provisions that they apply to, concealed in secondary legislation.
It is well evidenced that the case for change is overwhelming because of the frankly alarming number of wrongful sentences that are passed—the estimate is in the region of 36%—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 a human aspect. The impact on those sentenced, on witnesses and, particularly, on victims and their ability to trust in our justice system is immense.
This can be described as 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 today 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 that we are legislating for is a one-off so there are key questions about how we intend to retain the benefits of the exercise and prevent layers of new law developing once again. 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?
Previously the Law Commission said that the best estimate of the financial benefit that the sentencing code would offer was savings of some £250 million over the next 10 years. What plans do the Government have to put any savings back into the justice system to fund desperately needed legal aid and improve overall access to justice?
With those comments, we very much welcome the Bill. We welcome the additions to it, particularly those that we asked for regarding the Armed Forces. We wish the Bill well on its journey through Parliament.
Lord Keen of Elie
I thank all noble Lords for their contributions to the debate. I join other noble and noble and learned Lords in thanking the noble and learned Baroness, Lady Hallett, for her maiden speech and her contribution to the debate. I welcome her to her place in this Chamber. I fear, however, that I must contradict her upon one point made in her maiden speech. She said that she had left the judiciary because, and I quote, “I was getting too old.” With respect, I would correct that assertion and suggest that what she had done was to trigger a statutory limitation introduced by the Judicial Pensions and Retirement Act 1993, which I suggest is really something quite different.
The noble and learned Lord, Lord Judge, implied that we were experiencing déjà vu all over again. There is an element of that, no doubt, but nevertheless the time that has elapsed has allowed this Bill to be improved, a point made by the noble and learned Lord, Lord Hope. So while I regret the delay that has occurred, that time has not been entirely wasted. We can therefore look forward, with the universal approval of all sides of the House, to introducing much-needed reform to the English law on sentencing procedure. It gives me particular pleasure as a Scottish lawyer to be introducing these measures.
The noble Lord, Lord Thomas of Gresford, inquired about the position of the sentencing code in the Armed Forces. It is intended that it will apply to the Armed Forces. I make one point clear: we are talking about the sentencing code Bill, not the sentencing Bill as anticipated in the Queen’s Speech. I want to make that absolutely clear.
My noble friend Lord Bates, and the noble Lord, Lord Adonis, raised wider questions about prisons, the impact of sentencing, crime, rehabilitation and the purpose of prison, and I quite understand their wish to address these matters going forward. However, while I acknowledge the importance of the points they raised, they are not for this Bill and I do not intend, at this time, to take them any further.
The noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, referred to future amendments to sentencing. Clearly it will be imperative, in taking forward further legislation on sentencing after the code is in place, that we ensure that Parliament abides by the principles of the code, so that it remains effective and workable. It would be of no benefit to anyone if we were to render such an important code effectively redundant by misadventure or inappropriate future amendments to sentencing.
Further points were made by the noble Lord, Lord Bassam of Brighton, about the power to carry out further amendments. That power is essentially there in case there has been any oversight in what is an extremely complex area, or if there is any change in sentencing law between Royal Assent for this paving Bill and the passing of the sentencing code Bill. It is included essentially for those purposes.
The savings that might be made by introducing the sentencing code have not been costed. We will have to wait to see what savings can be made, but, as the noble Lord observed, the Law Commission itself expects some savings to be made.
There were wider contributions from noble Lords, which I readily acknowledge, but at this stage—and at this point in the evening—I would like to repeat the thanks already expressed to all those who have contributed to this work, both at the Law Commission and within parliamentary counsel. I also acknowledge that, across the House, there is a recognition of the need for clarity to be introduced into this complex area of the law. I finish, therefore, by thanking all noble Lords for their contributions, and I commend this Bill to the House.