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

Lord Keen of Elie Excerpts

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

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.

--- Later in debate ---

[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.

Bill read a second time and committed to a Committee of the Whole House.