Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Davies of Stamford Excerpts

Second reading committee (Hansard): House of Lords
Wednesday 12th June 2019 Grand Committee

[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.