Sentencing (Pre-consolidation Amendments) Act 2020 (Exception) Regulations 2020

Lord Thomas of Gresford Excerpts

Wednesday 16th September 2020 Grand Committee

[Lord Thomas of Gresford (LD) [V]]

My Lords, I add my personal tribute to the noble and learned Lord, Lord Keen of Elie, the Advocate-General for Scotland. Over the past number of years, he has held some very difficult briefs and has done so with great professionalism and aplomb. I have admired him for it, although I must say that I have not envied his position. It so happened that a year ago, when I was ill at home, I had the opportunity of watching the whole of the Prorogation proceedings before the Supreme Court, when he was in charge of a very difficult and, ultimately, losing case and he did that very well. On a personal level, he has always been extremely polite and pleasant, and I am glad that he has taken the route of honour, which I hope will be followed by the Lord Chancellor, Robert Buckland, who I also know to be, both personally and professionally, a very decent man. I imagine that he will be tortured in the same way as the noble and learned Lord, Lord Keen, has no doubt been in the past few months.

I must confess that I am a little puzzled by the regulations, as is the noble Lord, Lord Blunkett. We all applauded the clean sweep provisions of the Sentencing (Pre-consolidation Amendments) Act 2020. The regulations appear to maintain the level of a surcharge ordered by the court at the level which was appropriate at the time of the offence. As I understand it, the surcharge was designed to transfer some of the costs of a court hearing, including support for victims, to an offender, and it varies according to the nature and seriousness of the offence and the overall sentence passed. It seems that under the regulations the clerk of the court will have to maintain a record indefinitely of the level of historic surcharges as they apply from time to time, and thus lose the benefit of the clean-sweep principle. Since the cost to the public purse of the court hearing and of support for victims is at the time the court hearing takes place, not at the time of the offence, I fail to see the logic of this.

My understanding of the situation has not been helped by the fact that my search for the Statutory Instrument 2020/310, the effect of which this order purports to retain, produced a nil return on the government website. I hope, therefore, I will be forgiven if my understanding is at fault, but it seems to me that the simple question is: why should an offender not contribute towards the current cost of a court hearing and of support for victims, rather than the cost at the time they committed an offence? In any event, what discretion does the court have in fixing the amount of the surcharge and does it vary in accordance with the offender’s ability to pay? I would be grateful for a response from the Minister on these points.