Coroners and Justice Bill

In moving Amendment 188CA, I wish to speak also to Amendment 188CC. I understand that we will also be debating government Amendment 188CB, and Amendments 188D and 191ZC in the name of the noble Baroness, Lady Linklater. We are now on Clause 106, which is headed "Sentencing guidelines". These amendments deal with subsection (11) and the matters to which the sentencing council must have regard in exercising its functions. My two amendments seek to delete two paragraphs from the subsection. The noble Baroness seeks to delete one of those paragraphs and to insert two new paragraphs in its place. The Government are adding a further paragraph. We believe that these measures are important and raise matters of constitutional propriety. As the Committee will be aware, Clause 106 sets out what sentencing guidelines the sentencing council must prepare for courts to have regard to. Later, we shall debate amendments in the names of the noble and learned Lord, Lord Lloyd, and the noble Earl, Lord Listowel, which seek to clarify what the courts must do. However, we must first consider what the sentencing council does. It will draw up guidelines for sentencing which—even if we dispute that the courts must follow them and say instead that they should have regard to them—will have a real impact on decisions made by judges and magistrates when handing down sentences. It is crucial, therefore, that the guidelines are drawn up in the interests of justice and not used as a back door for the Government to interfere with the discretion of the judiciary. That is why some of the provisions in Clause 106 have given us cause for concern. Subsection (11) sets out, as I said, the matters to which the council must have regard when setting sentencing guidelines. Paragraph (b), which is the first one that we wish to delete and would be removed by Amendment 188CA, says that the council must have regard to, ""the need to promote consistency in sentencing"." At first glance, that seems entirely unobjectionable. It is a frequent complaint that sentences appear to make little sense or that there is wide disparity in the sentences handed down by different courts in different parts of the country as punishment for the same crime. However, a closer analysis would tell us what we already know: every crime is different; it involves different defendants, different victims, different motives and so on. It is to respond to those unavoidable differences that we rightly allow—indeed, demand—that the judiciary be flexible and exercise its discretion when sentencing. The same should apply to the council. While it may be acceptable for the council to set parameters within which judges can exercise their discretion, we would be entirely opposed to any attempt to try to straitjacket it by setting overly restrictive guidelines in a misguided attempt to achieve the impossible—that is, uniform sentencing for a kaleidoscope of different circumstances. We need the Government to show that they are alert to the risk of interfering with judicial independence, however indirectly it might appear to be happening. The second amendment that I have tabled—Amendment 188CC—would remove paragraph (d), which the noble Baroness will also seek to remove but then reinsert in a slightly different manner in the form of two new paragraphs. We believe that the provision is an unacceptable attempt to shove problems that are properly the province of the Executive and the legislature into the field of the judiciary. Working out how much money is available is obviously a job for the Government, for which they need to seek the approval of Parliament. Money matters should be debated and decided in another place principally and, to a lesser extent, by us here. To put pressure on judges to change their sentences because the Government have run out of money, as we understand they are about to do, is not something that we could support. The report produced by Lord Justice Gage considered whether a duty should be placed on the Sentencing Guidelines Council to have regard to Parliament’s intentions on capacity, alongside the other matters to which it must have regard. Such a duty would oblige the council to have regard to this new factor alongside the others to which it must already have regard. I understand that the working group was divided as to the advantages and disadvantages of this proposal, but a majority was against. The report stated that those in the in the working group, ""who do not favour imposing this duty on the SGC believe that to do so would inevitably lead the SGC to consider matters of policy relating to resources, which are the province of Parliament. For instance, in the event that supply and demand appeared in danger of being out of balance, the SGC might have to consider ways in which the guidelines could be drawn up to take this into account … They believe that leaving Government and Parliament to choose how to address this imbalance better fits the appropriate relationship between Government, Parliament, the SGC and the judiciary"." The majority of the working group believed that the disadvantages of placing a duty on the SGC to have regard to resources outweighed the advantages. Accordingly, in its view, no such duty should be placed on the SGC. The report concludes in paragraph 9.16 that it would be inappropriate to place such a duty on the SGC and makes no such recommendation. We endorse that view. I beg to move.