Coroners and Justice Bill

The answer to the noble Baroness’s question is yes. We are becoming tick-box obsessed. That may be at the root of Part 4. In the years that I served as a recorder and circuit judge it never occurred to me that there was a dearth of good advice on sentencing. In addition to the list that the noble and learned Lord, Lord Lloyd, properly referred to, one could have added the fact that about 20 years ago, if I remember rightly, we had an excellent institution of sentencing reports, as full and complete as one could possibly wish for. There was an amplitude of good material at the disposal of the intelligent and conscientious sentencer. Now all sentencers of every rank are in a situation of abject horror at the effect of this provision. There are no doubt many things about Part 4 that are quite laudable. There was probably a case for extending the Sentencing Guidelines Council’s remit in so many regards to some extent. But the sovereign nature of the guidelines now brought about by Clause 111 is utterly objectionable. Those words mean what they seem to mean: "must follow". They are peremptory and mandatory. They cannot be anything else. The consequence is that sentencers will be placed in a straitjacket, will be enslaved, and will be mere ciphers and robots in a tick-box system. That goes to the very root of the administration of criminal justice in our country. I have the gravest doubts as to what the Government’s motivation was. I appreciate the genesis of this. It started with the report of the noble Lord, Lord Carter, in December 2007 and the problem of prison overcrowding. He pointed to two possible solutions: massive building, which has been accepted by the Government, and the setting up of the Gage committee. That committee looked with great conscientiousness at the whole situation, but its recommendations are not exactly being brought into legislation by the Bill. Indeed, on the main matter, there was indecision in that committee. The committee’s decision was to reject the Minnesota and North Carolina strictness and to opt for a somewhat less harsh regime. That regime is nevertheless utterly mechanistic, unimaginative and non-human, as far as the sentencer is concerned, in its approach. It is therefore a cancer that grows to the very root of the administration of justice and must not be allowed to persist. There is constitutional point that nobody has mentioned until now in these discussions. The wording of Clause 111 comes directly from New Zealand’s Sentencing Act 2002. This is the second time in two days that we have been discussing legislation that has been culled completely from a New Zealand statute. The anonymity of witnesses provisions of the Bill are another instance. However, in New Zealand, the point is taken that so much authority is given to a sentencing council or commission that it is effectively making new law. Because it is making new law, it must pass, by way of order, through the New Zealand legislature. That point was raised at Second Reading in another place. The Secretary of State for Justice said that he had some sympathy with that view, but the Bill is totally silent on the matter. If it is sovereign and mandatory, as it is, I have no doubt that it is bound to have the effect of making new law that does not pass through Parliament. I have no real idea what the Home Secretary’s intention was in this matter. He said that the, ""suggestion that the proposal is driven by a desire to reduce the prison population is completely untrue".—[Official Report, Commons, 26/1/09; col. 47.]" At a later stage of the Bill he outlined the intentions on the independence of judges: ""First, and above all, the Government are trying to ensure respect and proper protection for the independence and autonomy of sentencers when they pass their sentences. That is critical: we need to provide considerable discretion, but we must also ensure that that discretion is exercised in a structured way that the public and other sentencers can understand. We are not fettering the judiciary, but we are saying that there should be a carefully moderated body of guidance".—[Official Report, Commons, 24/3/09; col. 241.]" I am glad to hear that they are not fettering the judiciary. If they were, what they would have done would have been utterly frightening over and beyond what would be achieved by Clause 111.