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

Lord Marks of Henley-on-Thames Excerpts

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

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will be relatively brief for a number of reasons. First, it is late. Secondly, this Bill has had a unanimous welcome and support from around the House; and, thirdly, we debated this Bill in almost identical terms on 12 June last, and again we have had an excellent debate in which a number of brilliant speeches have powerfully made the case for the Bill.

I too welcome the noble and learned Baroness, Lady Hallett, to this House and congratulate her on her excellent maiden speech. I have admired the noble and learned Baroness for many years as an incisive advocate, as an extremely distinguished judge in the High Court and the Court of Appeal, as a forward-looking chair of the Bar Council, as an effective treasurer of my Inn, the Inner Temple, and in many other roles. She expressed concisely and brilliantly, with all her vast experience of the Court of Appeal Criminal Division, the reasons why this Bill is so welcome when she described the crazy complexity of the existing statutory provisions and expressed the view that this Bill and the sentencing code will, at a stroke, simplify sentencing. The Bench’s loss is of course our gain and we look forward to the noble and learned Baroness’s future contributions to the work of this House.

Perhaps I may add a few words from the perspective of these Benches. First, we are completely committed to the mission of the Law Commission to ensure that the law is as fair, modern, simple and cost-effective as possible. This Bill is essential to that mission and in an area that is central to our law and liberties. We have heard accounts from speakers from the noble and learned Lord, Lord Judge, onwards—including from my noble friend Lord Thomas of Gresford, on military law in particular—of anomalies in existing sentencing law; its fiendish complexity and inaccessibility, to judges and counsel, let alone to the public and defendants who most need, and are entitled, to understand it; the passing of unjust and unlawful sentences, with a frequency that defies belief; and the delays and cost caused by bad sentencing.

The Bill has at its heart the Law Commission’s stated aim

“to codify the law, eliminate anomalies, repeal obsolete and unnecessary enactments and reduce the number of separate statutes.”

But I add a few notes of plea and of warning. First, the code will work well only if future sentencing changes are not only incorporated into the code, as the Bill promises, but are themselves kept simple. It has not just been difficulties of understanding that have made sentencing law inaccessible. There have been too many complex variables in the substance of sentencing law, as to when and under what conditions particular sentences may or may not—or must, or must not—be passed. These have made it very difficult for lay people and lawyers to understand the courts’ powers and the rationale for them.

Secondly, I applaud the clean-sweep provisions. It is essential that everyone understands what sentences can be passed by the courts, and I agree that the best reference date for that understanding is the date of sentence. That is subject to the exception outlawing retroactive sentences imposing penalties that would not have been available at the date of the offence. This principle was described in the Explanatory Note, and by the Minister at Second Reading last year, as ensuring

“that the clean sweep does not contravene the general common law presumption against retroactivity”.—[Official Report, 19/6/19; col. GC 15.]

I agree with what the Minister said today: this principle is necessary to protect the “fundamental rights” of the offender. The principle was then rightly described by the noble and learned Lord, Lord Hope—and effectively repeated today—as incorporating a requirement

“that the convicted person must not be dealt with by the imposition of a penalty of any kind which is more onerous than that which he would have faced when the offence was committed.”—[Official Report, 19/6/19; col. GC 19.]

As the noble and learned Lord, Lord Falconer of Thoroton said, we will consider that principle further in connection with the Bill concerning changes to release dates, published today, which we will debate later this month—and I share the noble and learned Lord’s anxieties.

Thirdly, those drafting legislation would be doing lawyers and lay people alike a kindness if they used less cross-referencing. Definitions reading that “phrase A in Act B shall have the meaning ascribed to it in Act C”, should cease to be a feature of our statutes. Simplicity and clarity are all; codification is part of the battle but, alone, it goes nowhere near achieving a statute book that is readily intelligible to the public. And that is what we must aim for, particularly in a society where computer literacy is now happily widespread, so that statutes can be easily researched by many, and also where citizens’ access to legal representation and advice has been substantially diminished by extensive cuts in legal aid.

Finally, as has been said, this Bill will not of itself improve sentencing policy. The Minister in opening made the point that it makes no changes to substantive sentencing law; nor does it. From these Benches, we will continue to argue for a sentencing policy: that puts rehabilitation at its heart; that will involve more community sentences, with improved and better-resourced supervision of community sentences and supervision during and following custodial sentencing; and that will reduce prisoner numbers, improve the prison regime and introduce a presumption against ineffective short sentences. These themes were addressed by the noble Lords, Lord Bates and Lord Adonis, in their welcome broadening of the ambit of this debate.

We want to see a penal system dedicated to helping offenders turn their lives around—so also cutting reoffending. Perhaps those are matters for another day, but they will nevertheless bear consideration throughout our consideration of sentencing. We will argue for the development of the code, when it comes, in that direction.