Sentencing Bill [HL]

Lord Keen of Elie Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Thursday 25th June 2020 Lords Chamber

Moved by

[Lord Keen of Elie]

That the Bill be now read a second time.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con) [V]]

My Lords, I believe noble Lords will agree with me that the law must be accessible, understandable and predictable. Unfortunately, with the greatest will in the world it has become difficult to say this about one particular aspect of our criminal law, that of sentencing procedure. Over the course of a generation, this body of law has grown incredibly complex and disparate. We have seen numerous examples of even the greatest legal minds in the country spending too much time trying to disentangle which provisions apply in individual cases. That is to say nothing of the challenge of victims and offenders themselves understanding the rules that will govern their case. Such a lack of transparency must be addressed.

That is why, in 2014, the Government agreed that the Law Commission should undertake a project designed to consolidate sentencing procedural law. The resulting consolidation Bill before your Lordships brings together the provisions which prescribe what happens to an offender who has been convicted of, or pleaded guilty to, a criminal offence. The substantive provisions of the Bill make up what is to be known as the Sentencing Code. The Sentencing Code contains the procedural provisions which courts need to rely upon during the sentencing process. This includes general provisions applying to sentencing courts, such as the purposes of sentencing, the duty to explain sentences and statutory aggravating and mitigating factors. It also includes the different types of sentence, such as fines, community sentences and custodial sentences, and also behaviour orders which can be imposed in addition to a sentence: namely, criminal behaviour orders, sexual harm prevention orders, restraining orders and parenting orders.

To aid accessibility and to help minimise the risk of error in the sentencing process, the Sentencing Code structures these provisions in an order which follows the chronology of a sentencing hearing. Certain provisions, such as the power to impose an extended sentence, are split by age of the offender. The Sentencing Code also includes signposts to other legislative provisions which will remain outside the Sentencing Code, to ensure these are not overlooked during the sentencing process.

The Bill also consolidates certain uncommenced provisions, such as the minimum sentencing provisions in the Offensive Weapons Act 2019 relating to certain offences concerning prohibited weapons and the possession of corrosive substances. These uncommenced provisions can be found in Schedule 22 to the Bill, separate from the main body of the Sentencing Code. This approach is intended to ensure that users of the Sentencing Code can be completely confident that the provision they are looking at is in force. If an uncommenced provision is commenced in the future, consolidating such a provision in Schedule 22 should make the commencement process straightforward.

The Law Commission consulted on a draft version of the Bill in 2017, and in 2018 conducted a separate consultation relating to the disposals in the Sentencing Code that are available for children and young persons. Both consultations received widespread backing from judges, lawyers and academics.

I remind the House that this Bill does not introduce any new sentencing law; nor does it make changes to existing offences and penalties. Indeed, as it is a consolidation Bill, it is not open to either House to seek to amend it in order to make such changes.

I finish by acknowledging that the Government are extremely grateful to the staff at the Law Commission and parliamentary counsel for their detailed and thorough work in this area over the past five years. The creation of this Bill is a tremendous achievement by the Law Commission and bears testament to the diligence and persistence with which it has approached this consolidation exercise.

If your Lordships are content to give the Bill a Second Reading, it will be referred to the Joint Committee on Consolidation Bills in the usual way. I beg to move.

--- Later in debate ---

[Lord Keen of Elie [V]]

My Lords, I thank all noble Lords, and noble and learned Lords, for their contributions. I reiterate my thanks to the Law Commission, and in particular to Professor David Ormerod and parliamentary counsel, for producing this consolidating measure—one that we all recognise is of supreme importance in this context.

Going forward, I acknowledge the importance of Parliament, when looking at matters of sentencing, being conscious of the need to mend the Sentencing Code and not derogate from it. Of course, we cannot bind future Parliaments, but we can make it clear today that we consider that that is the only appropriate way forward in dealing with further changes to sentencing.

I will touch briefly on a procedural matter raised by the noble Lord, Lord Campbell of Pittenweem, and touched on by the noble and learned Lord, Lord Thomas of Cwmgiedd. My understanding is that, because this is a consolidation measure, parliamentary practice does not require or direct the preparation of Explanatory Notes, the explanation being that it is a consolidation of the existing law. It may be a point of practice that will be looked at again in the future, but that is why there are no Explanatory Notes.

I will touch on some of the issues raised by noble Lords. The noble Lord, Lord Blunkett, raised the matter of IPP prisoners and prison sentences. I should point out that the Bill does not cover release, which is dealt with by Part 6 of the Criminal Justice Act 2003. Release and recall provisions for IPP prisoners remain as they were before.

The noble Lord also raised the matter of training, as did the noble Baroness, Lady Sater. Of course, we appreciate how critical that will be, and we appreciate that the Judicial College will take on that role with regard to the judiciary. We have heard no expressions of concern about its ability to do so, which may very well reflect the skill with which the Law Commission and parliamentary counsel produced such a formidable Sentencing Code in language of such clarity. Of course, the training will go beyond that of the judiciary and will be required of the legal profession in general.

A number of noble Lords quite rightly mentioned illegal sentences. We have to see the results of the relevant sample in context. What was being looked at were sentences that had been challenged as being either excessive or unlawful and which had therefore been brought to the Court of Appeal Criminal Division to be dealt with. Of course, it is an unusually high proportion of the work before the Court of Appeal, but these sentences were the subject of appeal and were being disposed of—and were the subject of appeal because an error in sentencing had been identified. So I suggest that one should not conflate that with the notion that 36% of all criminal sentences handed down by the judiciary are liable to be illegal. That would not be an appropriate inference to draw. But the matter of illegal sentences underlines what I would term the time-layered complexity of sentencing law, as it is built up over many years. That is what Professor David Ormerod addressed with the extremely astute use of what is termed the “clean sweep” mechanism and with the development of the Sentencing Code itself.

The noble Lord, Lord Carlile of Berriew, asked about the Bill’s commencement. We would like to see it commence as soon as possible, of course, and we continue to aim for 1 October 2020. The legislative programme has been under strain, for reasons that are all too apparent to noble Lords and noble and learned Lords, but at the moment we continue to aim for that date and we understand its importance.

On some of the other points that were raised, the noble Lord, Lord Addington, asked how the clean sweep would apply to someone who committed an offence before the Sentencing Code came into place. Safeguards there ensure that, if an individual would be subject to a sentence under the code which is greater than the maximum that would have been available at the time he committed his offence, that maximum at the time he committed the offence will be applicable and he will not be subject to the sentence in the code. I hope that that gives the noble Lord some comfort. Indeed, if someone who committed an offence before the Sentencing Code came into force would be liable to a minimum sentence that did not apply at the time he committed the offence, again, that minimum sentence would not be applied to him. That is part of the process that is being brought in, albeit it will be transitory because eventually we will move away from dealing with offences which were committed before the code came into place.

The noble Lord, Lord McConnell of Glenscorrodale, raised the question of devolved competence. The Bill does not extend to Scotland, because of course sentencing policy is a devolved competence, and it does not impinge upon devolved competence. A number of matters are dealt with in the code which simply address the transfer to Scotland of community orders and suspended sentence orders, and that is all. However, it does not impinge upon devolved competence as such.

My noble friend Lord Balfe alluded to the question of reviewing all sentences. We do not contemplate doing that and, as I hope I explained earlier, one should not take the sample of 2012 out of context. It is important to understand just how that came about.

Finally, a number of noble Lords—the noble Lords, Lord Adonis, Lord Harris and Lord Trimble—alluded to matters that are essentially outwith the scope of this consolidating measure. I hear what they say, and no doubt Parliament will wish to take account of the concerns that they expressed with regard to both sentencing policy and the whole issue of imprisonment. However, that is a matter for another day.

I hope that I have dealt with the specific questions raised by noble Lords. Again, I am grateful for the support that is being expressed across the House for this consolidating measure.

Bill read a second time.