Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Bassam of Brighton Excerpts

Second reading committee (Hansard): House of Lords
Wednesday 12th June 2019 Grand Committee

[Lord Bassam of Brighton (Lab)]

My Lords, it has been a pleasure to listen to the debate. I think that I am probably the only lay person to take part in it so I feel privileged to be among such fine legal minds. I am grateful to the Minister for his cogent and coherent introduction. Following the strictures of the noble and learned Lord, Lord Brown, I intend not to be original in anything I say, but I will make some points for the Official Opposition.

It is good to see parliamentary time being used effectively; that has felt like something of a rarity in recent months. With the dearth of legislation being pursued by this Government, as observed by the noble and learned Lord, Lord Hope, we recommend to the Minister that we would be happy to see more Law Commission Bills come through our House. That may be seen as one bonus of Brexit that we can all share and enjoy.

Our justice system currently faces extreme challenges. The decimation of legal aid has reduced access to justice for those who need it most. Courts are facing budget cuts and are haemorrhaging experienced staff. The Government have recently been pushed by voluntary organisations, campaigners and MPs to review the workings of the family courts, as they are failing survivors of domestic violence. In the face of all that and more, we still have to get sentencing right. I absolutely welcome the Bill in that regard. We believe it to be a good place to start.

As noble Lords have said, the Bill is a “pre-Bill” before the main show arrives in the form of a modern, streamlined sentencing code. As has been explained, the aim of the Bill is to repeal bits of the past sensibly and pave the way for the future, allowing the law to be easily accessed and, we hope, amended in one place. I wish to put on record our thanks to the Law Commission and all the other stakeholders that have contributed to the years of work, research and consultation that have brought the Bill before us and the consolidation Bill that will follow it. The noble Baroness, Lady Deech, testified to the reduced number of pages there will be in the code. That is very welcome because it will make the code much easier to understand.

The legislation has been strongly welcomed by the profession. In its briefing, the Bar Council referred to existing sentencing law as a “patchwork quilt” and urged the introduction of the sentencing code without further delay. That patchwork is derived from three statutes, including the Powers of Criminal Courts (Sentencing) Act 2000 and the Criminal Justice Act 2003. I think that I might have been responsible for one of those pieces of legislation as a Home Office Minister.

The commission estimates that there have been at least 14 major Acts covering sentencing in the past 30 years. I know that I took 19 Home Office Bills through in the two years I was exclusively a Minister in that department. I know that at least one of them repealed legislation that had created sentences only six months before. The point about delayering is well meant and well met.

After all that parliamentary work, making changes across primary and secondary legislation, the commission writes that the law on sentencing procedure is,

“extremely difficult to locate, interpret and apply, even for an experienced lawyer or judge”.

What hope, then, for a lay person like me? Apparently very little, we are told, as it can be “practically impossible” for someone to locate and understand parts of the law. That cannot be right.

To illustrate the complexity of the current system, the commission gives two very good examples. At one point, it points to a maximum fine that can be unlimited —you just have to read about it somewhere else. The second example is about the effect of commencement dates recorded separately from the provisions they apply to, concealed in secondary legislation. Noble Lords know only too well the joys of how opaque secondary legislation can be.

The case for change is overwhelming. Noble Lords have spoken about the frankly alarming number of wrongful sentences passed, and the cost of delays and appeals. The complexity of the current layers of law comes at a high price. Beyond lengthy procedure and the public purse, there is, as other noble Lords have said, a human aspect; I thought that the example from the noble and learned Lord, Lord Judge, was extremely good. The impact on those sentenced, on witnesses and, particularly, on victims and their ability to trust in our justice system is immense. I was drawn in particular to the example from the noble Lord, Lord Marks, of the, I think, 262 Court of Appeal cases sampled from 2012, 36% of which had had a wrongful penalty applied.

As has been said, this is a Bill of two parts. The clean sweep, as it has been called, is the more novel part. We appreciate the detailed work done on the possible human rights implications of the sweep and its retroactive remit, particularly on our rights under Article 7 of the ECHR. I welcome the exemptions that have been identified and included in Schedule 1. Clause 1 includes a regulation-making power to allow the Secretary of State to specify other provisions that the clean sweep will not apply to. It would be helpful if the Minister could outline in what circumstances that power might be used. Is the intention for it to be a back-up in case any exemptions have been missed out of Schedule 1?

The clean sweep we are legislating for is a one-off—a single spring clean as it were—so there are key questions about how we intend to retain the benefits of the exercise and prevent layers of new law once again building up to gather dust. Is it the Government’s intention that, where amendments are made to the code, they will also be commenced so that they apply to everyone convicted after that date, regardless of when their offence was committed, thus building in a kind of retroactivity as the norm in our sentencing?

The Bill’s second purpose concerns the more traditional pre-consolidation amendments. I express my thanks to the commission and the Ministry of Justice for the detailed examples they provided on the types of amendments included, and the reasoning and logic behind them. I noted that Clause 2 also includes a regulation-making power—this one limited to regulations that, in the Secretary of State’s opinion, “facilitate” or are,

“otherwise desirable in connection with”,

the consolidation of sentencing law. The Explanatory Notes say that once consolidation has happened, the power will no longer be able to be used. Can the Minister explain whether thought was given to sunsetting either of the regulation-making powers included in the Bill? The Explanatory Notes also say in paragraph 11 that once the sentencing code is commenced, the pre-consolidation Bill,

“will have served its purpose and will largely be repealed”.

Can the Minister outline which elements of the Bill they expect to repeal?

I will wind up with a handful more questions. I am sure the Minister will be delighted. In its background to the sentencing code, the Law Commission referred to the possibility of extending the code to the Armed Forces. Do the Government have any plans to make arrangements for the code to apply also to service jurisdiction? Crucially, when are we expecting the sentencing code Bill to be introduced? A number of your Lordships have said that it ought to be expedited, so can the Minister guarantee that there will be no delay between this Bill and its partner Bill. Finally, the Law Commission tells us that the best estimate of the financial benefit the sentencing code will offer is savings of some £250 million over the next 10 years, which other noble Lords have mentioned. I know that Ministers are always very reluctant to hypothecate where money ought to go, but we have talked about the shortages in funding to the justice system and we owe it to the justice system to ensure that it is well resourced. In addition, we should have some good practice in passing legislation, not least because of the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and its adverse effect on justice in our country. Can the Minister tell noble Lords what plans the Government have to put any savings back into the system to fund desperately needed legal aid and improve overall access to justice? Having said that, we, too, very much support this Law Commission Bill.