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

Lord Mackay of Clashfern Excerpts

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

[Lord Mackay of Clashfern (Con)]

My Lords, it gives me the greatest possible pleasure to follow the excellent maiden speech of the noble and learned Baroness—which, of course, having known her for some time, I expected to be of the highest quality.

This Bill forms part of the extremely valuable consolidation procedure. For a short time, I had the honour of being the chairman of the consolidation committee, but I was saved from continuing in the role by being appointed Lord Chancellor. I discovered that, of all the committees which serve Members of both this House and the other place, the difficulty of convening a quorum for the consolidation committee was the probably the highest. That suggests to me that the process of consolidation is not as precious, or perhaps as fully understood, as it should be. That is because, unless we have reasonable consolidation, our statute book will become less and less intelligible.

I had the honour of being a member of the Scottish Law Commission for a time, and like the noble and learned Lord, Lord Falconer of Thoroton, I was the Minister for the Law Commission during my time as Lord Chancellor. I think that it was a marvellous institution which was set up by Lord Gardiner, with a certain amount of query from some lawyers, as is usually the case if you make an improvement, and the result has been absolutely excellent. One of the features of the Law Commission as I knew it was that it usually had the services of a parliamentary counsel, then detached from the ordinary office in Whitehall. I suspect that the parliamentary counsel involved in this Bill was seconded to the Law Commission.

In the past I have had a little experience of the relationship between the Law Commission and Her Majesty’s Government. One of the features of the criminal law of England and Wales is that it is principally statutory law and not all of it is absolutely at the peak of modernity. In fact, it is extraordinary how old some of the essential provisions that are in day-to-day use are. When I was concerned in these matters, there was a move to codify the criminal law. A certain office of state had responsibility for the criminal law and was reluctant to see anything of the kind happen—but somehow the Law Commission managed to start a procedure for codifying the criminal law. It was eventually able to excise a bit that seemed reasonably attractive to the office in question—but, so far as I know, it never got any further.

We have here an example of modifying and modernising the process for sentencing, as has been pointed out. We are not able today to give effect to my noble friend Lord Bates’s sentiments, which I very much share. It is not part of this Bill, which is concerned only with the sentencing process. It deals with it in a very effective way; it could not possibly do it simply by a consolidation Bill. This pre-consolidation Bill is able to make the corrections that, when fitted in, will bring in a sentencing code that will be absolutely excellent. I hope—I feel certain this will be the case—that there will be many fewer unlawful judgments from now on. Even judges can make mistakes, but the chances of mistakes in this situation are very much reduced.

The noble and learned Baroness pointed out in her maiden speech how much she values the judiciary of this country. As it happens, I was coming from Inverness last night on a plane that was a little later than it might have been if the weather had been different, and I was talking to a gentlemen who was much in business and somehow knew my line of life. He began to talk about the judiciary and said, “I have had experience of many countries and of employment law in many countries. The unique feature of the United Kingdom is the absolute honesty of the judiciary.” It is an extremely precious quality, and I honestly am not absolutely certain that it is fully appreciated in every quarter as it should be.

It is extremely important that the status and remuneration of the judiciary, including pensions, should match that very big quality. It is not that they are paid for honesty, but they are employed and continue to be employed because they are honest. Sometimes some statutory instrument comes along and their termination appears, but it is nothing at all to do with any fault in them. It is simply what some mistaken people in the past have brought in as the ultimate age for service. This is an extremely important matter. I certainly believe that that quality is in a way preserved by this Bill, which will help honest judges get the answer that is right.