Sentencing (Pre-consolidation Amendments) Bill [HL] (Law Commission Bill)

Lord Hope of Craighead Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Tuesday 11th February 2020 Lords Chamber

[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.