Criminal Justice Bill

Public Bill Committee, 6 February 2003.

Standing Committee B

Criminal Justice Bill

Clause 145 - Pre-sentence drug testing

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 652, in

clause 145, page 81, line 11, leave out '14' and insert '18'.

We move on to the extension of pre-sentence drug testing to people aged between 14 and 18. The clause opens up some serious questions about the Government's view of how young people are best treated for drug addiction or potential drug addiction. That extension goes beyond existing arrangements for intervention and appropriate treatment for youngsters in that age group. There is no obvious reason why it should be extended to what is effectively a criminal sanction, and it certainly will be a criminal sanction if 14 and 15-year-olds refuse to accept compulsory testing under such circumstances.

It is not clear that a treatment regime will be prescribed as a result, other than the sanctions imposed through sentencing. Many people feel that the right treatment at that stage cannot be given through a sentencing process, but that it can be achieved only through a health process. We need to ensure that if young people in that age group have a difficulty with substances, they are given effective treatment rather than having sanctions imposed on them.

It is not clear whether the rights of the child, as prescribed under the United Nations convention, are circumscribed in any way. We must ask whether the Government have a clear view of an age of majority in that area. I find it confusing that so many ages are prescribed in different parts of the Bill and in other legislation that have a level of responsibility commensurate with adulthood. I cannot see a coherent rationale behind the proposal, and the Government have adduced no arguments for it.

We believe that what is appropriate for a 14-year-old is not appropriate for an adult. Even with the accelerating growth in maturity of young people, and their increasing predilection in some circumstances to such addictions, there is still a difference between childhood and adulthood. I do not understand where the Government are coming from; the way in which they discriminate between children and adults shows muddled thinking.

By extending the drug testing provisions and creating another offence for which children can be punished, either by fine or by imprisonment, we risk adding yet another criminal sanction. I will be plain

about it: that is not appropriate. The Minister must explain why he thinks that it is appropriate.

Finally, the provision provides scope for discrimination between the young person who has experimented once and is found to test positive and the young person who has a problem with the continuous addictive use of a banned substance. That discrimination should be dealt with.

I would be much happier if there were a proper programme of treatment for young people who were found to have a drugs problem that was one of the contributing factors to their involvement in other offences. I do not see that in the Government's proposals; I see simply a regime that may lay an additional level of criminality on a young person without the proper remedy to help them out of a life of addiction. The lack of therapeutic effect of what is proposed in subsection (1) and the simple assertion that it is a path worth following mean that I find it difficult to support the Government's proposals.

Graham Allen (Labour, Nottingham North)

Good morning, Mr. Illsley. What a joy it must be to be the Member of Parliament for Somerton and Frome. There, up to the age of 18 girls sport pigtails and boys go about in short trousers, school cap skew-whiff, carrying their catapult in their back pocket. Sadly, it is not quite like that in Nottingham, North, where some are hardened offenders by the age of 18. It will not surprise the hon. Gentleman nor the Minister that I do not consider the 18 of the amendment or the 14 of the clause to be appropriate—I will not detain the Committee by rehearsing the arguments. If someone is arrested and tried and is awaiting sentence, the age of 10 is appropriate for offenders who will be on class A drugs. This is not smoking behind the bike sheds in a ''Just William'' story; this is people whose life will be completely wrecked. We are talking about people who engage in criminality, probably for the rest of their life, to feed their habit. It will help those people to get hold of them at the earliest possible age. I fully appreciate the hon. Gentleman's sentiment, but he is not helping those young people by helping them to avoid proper drugs testing at the appropriate time.

The Minister very kindly said in an earlier debate that the Department was in touch with the Nottinghamshire police about the issue. At the time, I raised the possibility that since the Secretary of State has reserved powers in this matter, he might consider a pilot scheme somewhere in the United Kingdom. I know that the Nottinghamshire police force would be up for that pilot scheme. Perhaps in his reply the Minister will assure me that the issue is being pursued and that it will, once the Bill becomes law, be possible for the Secretary of State to set up one or two pilots in which youngsters from 10 onwards—not 14 onwards—are tested so that we can help them and help also to reduce drug-related crime in that age group dramatically.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Member for Somerton and Frome (Mr. Heath) highlighted an important issue, as did the hon. Member for Nottingham, North (Mr. Allen). I have no difficulty with the principle of pre-sentence drug testing for young offenders, but I am concerned about

what it is intended to lead to. Either it will be part of a national programme to tackle drug addiction that is picked up in young offenders at the time of sentencing, or it will be a pointless bureaucratic overlay to the sentencing process, which, as the hon. Member for Somerton and Frome rightly pointed out, could criminalise people who do not comply. My difficulty with the clause is not its intention but the way in which it will work.

As the Minister will have seen, our amendments suggest taking the opposite direction from that advocated by the hon. Member for Somerton and Frome and widening the scope of the orders to include other drugs besides class A drugs. There are two poles to the way in which this issue can be viewed. At one is the attitude that there is no point in doing anything, because even if testing is carried out, it will lead nowhere. However, if that is the case I should prefer there to be no clause at all. If something constructive is to be done, I should go to the other pole and say that I can see no reason to confine the testing to class A drugs.

We have a serious problem in this country. From the evidence that I have seen in the past 12 months, it seems that there is a clear link between drug abuse and crime. Furthermore, the level of drug abuse in some areas of the country, particularly by young teenagers, is very high. One need only go to Camberwell to see the problems of young people who turn up at Kids Company to realise that cannabis addiction is starting at 11 or 12. Those running Kids Company take the view that it is often used for a sedative effect, which may actually reduce the crime level in the locality, although it is a symptom of serious social and personal problems for those who abuse it.

John Mann (Labour, Bassetlaw)

Can the hon. Gentleman cite any evidence such as a research study or a medical trial from anywhere in the world that shows a link between a non-class A drug and acquisitive crimes?

Dominic Grieve (Conservative, Beaconsfield)

I simply say this: the hon. Gentleman might want to go to Kids Company and talk to the staff. The whole point of Kids Company is to keep young people off the streets and out of crime, and it is successful at doing it while they are attending. However, those who go there are often the ones who have been committing a large proportion of the street crime in the Camberwell area; I think that that view is supported by the Home Office's study of what happens there. Most of them are addicted to cannabis—leaving aside the question of any other substance abuse.

Whether there is a correlation between those youngsters' acquisitive crime and their cannabis use I am not prepared to say. The cheapness and ready availability of cannabis suggest that it may not be necessary to commit crime to obtain the money to pay for it. Buying cocaine or heroin is different in that respect. However, there is a clear correlation in my mind between the dysfunctionality of childhood that is giving rise to regular cannabis use by adolescents, and lifestyles so chaotic that those young people also commit crime. I go no further than that.

John Mann (Labour, Bassetlaw)

I repeat the question. Can the hon. Gentleman cite any evidence that the use of non-class A drugs such as cannabis—on which subject he will know I am not a liberal—has any correlation with acquisitive crime? In addition, can he cite any evidence to suggest that addiction in relation to cannabis is nicotine addiction? Pure nicotine addiction could be an addiction in the same way for an 11-year-old. I would regard that as equally serious. I wonder whether the hon. Gentleman does.

Dominic Grieve (Conservative, Beaconsfield)

I am sure that nicotine addiction can be a serious problem for the health of young people. From visits that I have made abroad, particularly to Boston in the United States, a picture unfolds of an entirely different public attitude to the problem of cannabis addiction in the young. There, it is seen as a serious public health problem. If a 15 or 16-year-old who has a cannabis addiction commits an offence, one option is for them to be treated in a residential rehabilitation centre, just as if they were a class A drug addict.

David Cameron (Conservative, Witney)

It is important to get our terms right. Talking about being ''addicted to cannabis'' is a slight misuse of language. Cannabis is not physically addictive, whereas nicotine is, and most cannabis is taken with tobacco. One should talk about ''a cannabis habit'', which can be very damaging.

Dominic Grieve (Conservative, Beaconsfield)

With regret, I disagree with my hon. Friend. People can be addicted to all sorts of things, such as drinking vast quantities of tea or coffee. If someone has a psychological dependency that interferes with their health, that is an addiction. Anyone who drinks six or seven mugs of coffee in the morning knows that doing so has physical consequences.

Paul Stinchcombe (Labour, Wellingborough)

Will the hon. Gentleman give way?

Dominic Grieve (Conservative, Beaconsfield)

Let me continue. I have clearly sparked a fuse.

From the evidence of my visits to the United States, I know that cannabis use is regarded there as a psychological addiction, which has serious health consequences for the user. I agree entirely with my hon. Friend the Member for Witney (Mr. Cameron) in so far as I accept that cannabis use is unlike crack cocaine use, because in the case of crack cocaine, there are clear signs of physical addiction, as, indeed, there are in the case of heroin.

David Cameron (Conservative, Witney)

No. It is terribly important to get this right. It is true that one can be addicted to shopping or tea, but there is a difference between a physical addiction—the strongest form of which is an addiction to heroin or other opiates, although one can also be physically addicted to nicotine or caffeine—and a mental or psychological addiction, such as in the case of cannabis. There is no medical evidence for physical addiction to crack cocaine, but there is very strong evidence for high psychological addiction. I am sorry to be a pedant, but it is important to get the terms right.

Dominic Grieve (Conservative, Beaconsfield)

I do not find my hon. Friend in any way pedantic and I am prepared to accept what he says, but

I disagree with him about consequences. It does not matter whether one has a physical or psychological addiction to a drug, if the consequence of the psychological addiction is that one is repeatedly driven to take that drug because of one's psychological need, and if the drug has a physical influence on the person while it is in his system. I think that my hon. Friend will agree that someone is in a different physical condition after he has smoked cannabis from that which he was in before. That is evidenced by the fact that he is unsafe to operate machinery or to drive because his cognitive functions are impaired. In the United States, a distinction is not made because smoking cannabis is regarded as a public health problem.

Paul Stinchcombe (Labour, Wellingborough)

So that we can have a properly informed debate, will the hon. Gentleman table all the evidence that he has seen that demonstrates that cannabis is addictive, so that we can scrutinise it?

Dominic Grieve (Conservative, Beaconsfield)

I say to the hon. Gentleman that I have seen plenty of evidence—[Interruption.] I shall explain to the hon. Gentleman. I am fascinated by this debate, because a modest proposal in relation to testing has taken off into a major debate. Perhaps I can reassure Labour Members. My purpose in tabling the amendment has nothing to do with the question whether cannabis should be a class B or a class A drug—[Interruption.] I apologise if we are still discussing amendment No. 652. I thought that we were on amendment No. 624.

Eric Illsley (Labour, Barnsley Central)

Order. We are still on amendment No. 652

Dominic Grieve (Conservative, Beaconsfield)

I apologise to the Committee—I was getting carried away with my own enthusiasm.

Humfrey Malins (Conservative, Woking)

I just want to bring the debate back to the nuts and bolts. Would my hon. Friend accept the proposition—if it has anything to do with what we are talking about—that those youngsters who abuse class B drugs, whether that be through amphetamines, glue sniffing or cannabis, are more likely to be part of a fraternity that is connected with crime, and therefore much more on the conveyor belt towards acquisitive crime, which comes from the move on to the next drug, than they would be otherwise?

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to my hon. Friend and I agree, although I apologise to the Committee for being carried away. The two issues that he mentioned are linked. The discussion was prompted by the amendment that the hon. Member for Somerton and Frome tabled, so I do not think that it is illegitimate to run the two issues together. However, I apologise to the hon. Gentleman that I should have widened the scope beyond what he was trying to achieve. I do not agree with his amendment, for reasons that have become fairly clear, although I was trying to highlight the notion—I agree with him on this—that there is no point in starting down that road unless that leads to proper rehabilitation being made available. I shall return to that issue in the next set of amendments. If we are going down that road properly, it would be well worth picking up whether young offenders have a problem with a class B drug, although without

criminalising them, because the matter is a public health issue of great importance, which is taken seriously in countries such as the United States. Opportunities are made available to such young people for proper rehabilitation that, unfortunately, we simply do not have in this country.

I am not prepared to accept the principle that cannabis is an innocuous substance. We have gone down that road and may come back to it. Cannabis might be only psychologically addictive, but the consequences of that psychological addiction are immensely destructive. Furthermore, as I suspect my hon. Friend the Member for Witney would agree, there is clear evidence that repeated cannabis use can have serious health consequences, by causing psychosis.

David Cameron (Conservative, Witney)

I just want to clarify that I do not disagree about consequences—I did not even mention them. I have spent a lot of time on the Select Committee on Home Affairs, and for the benefit of the Committee I wanted to define the difference between mental addiction and physical addiction, and make sure that the right drug was in the right category. That was all that I wanted my hon. Friend to be clear about, and was the sole purpose of my pedantry.

Dominic Grieve (Conservative, Beaconsfield)

As I said to my hon. Friend, he was not being pedantic, and I am grateful to him for clarifying that matter. From my work practising as a barrister and the work that I have been doing over the past 12 months, I am perfectly aware of the difference between a psychological and a physical addiction. However, from the point of the view of the consequences to the user, my opinion is that although there might be differences in treatment, the damage that is done to the individual if they are addicted psychologically or physically can ultimately be similar, in terms of the destruction of their life. That is why picking up whether 14-year-olds have a class B drug problem such as cannabis might be equally valuable if we can provide proper help for them.

Coming back to the amendment tabled by the hon. Member for Somerton and Frome, I have explained my position on that, which is that as I have just enough residual faith that the Government will try to do something about class A drug addiction, the provision might be of value. The hon. Member for Somerton and Frome is right that, unless that provision exists—at the moment it does not—it has no value.

Paul Stinchcombe (Labour, Wellingborough)

So that we can debate this on a properly informed basis rather than through bias, can the hon. Gentleman supply us with any evidence that the use of cannabis is immensely destructive?

Dominic Grieve (Conservative, Beaconsfield)

If the hon. Gentleman seriously believes that regular use of cannabis—

Paul Stinchcombe (Labour, Wellingborough)

Immensely destructive.

Dominic Grieve (Conservative, Beaconsfield)

Yes it is immensely destructive. One only has to meet people who have been regular cannabis users to recognise the way in which it has destroyed their life. I accept that occasional, recreational use might be harmless, but I do not

accept—on the evidence of people whom I have spoken to and seen—that that is the case in relation to regular use. I have only to think of the parents who came to my surgery last week and described their son's schizophrenia. He was hospitalised at the age of 23 with serious psychotic problems, entirely triggered by cannabis use at university.

If the hon. Gentleman is going to tell me that there is no clear evidence of the link between cannabis use and psychosis, when it is well documented in medical literature, we are on different planets.

Paul Stinchcombe (Labour, Wellingborough)

On the broader argument, I do not disagree with the hon. Gentleman. The greatest indicator as to whether someone will be a heroin addict when he is 25 is whether, at the age of 15, he plays truant and smokes cigarettes. I simply suggest that it is damaging to use terminology in a misleading way and to suggest that cannabis is both addictive and immensely harmful when it is relatively harmless and largely used by law-abiding—[Interruption.]

Eric Illsley (Labour, Barnsley Central)

Order. We are involving ourselves in a clause stand part debate instead of debating amendment No. 652. The Committee is anticipating the next group of amendments. If we are to have a debate on the merits of class A drugs, cannabis or any other substance, it should come within the appropriate group of amendments and I would advise the Committee to dispose of this amendment before moving to a more general debate.

Dominic Grieve (Conservative, Beaconsfield)

I am conscious that the cats have started to miaow. In the circumstances—

Desmond Turner (Labour, Brighton, Kemptown)

Will the hon. Gentleman give way?

Dominic Grieve (Conservative, Beaconsfield)

Of course I shall give way. I was not intending to raise passions on the amendment. I am sorry that I ran the amendments together, although they have a logical link. I shall return to my own amendments in a cool and dispassionate way in a moment.

Desmond Turner (Labour, Brighton, Kemptown)

As a simple non-lawyer, I am at a loss to see how the hon. Gentleman's amendments have any relevance to the arguments that he has been putting to us. What is the advantage of changing the age at which a test is taken from 14 to 18? The hon. Gentleman has made it clear that he is concerned about much younger people becoming involved in drug abuse. I do not see the relevance, and I would appreciate it if he could explain what the amendments contribute.

Dominic Grieve (Conservative, Beaconsfield)

I shall return to them when we consider the next group. I made the point that they were probing amendments designed to look at the range of options open to the Government.

Eric Illsley (Labour, Barnsley Central)

There are no probing amendments. The hon. Gentleman is addressing only amendment No. 652. As I said, we should deal with that before we move on.

Dominic Grieve (Conservative, Beaconsfield)

I have made my points on amendment No. 652, and we can pursue the discussion on the next amendments, which I tabled.

Ian Lucas (Labour, Wrexham)

Briefly, I am strongly against the Liberal amendment, No. 652, and I want to clarify why.

In the late 1980s, I worked as a solicitor in Birkenhead and dealt with a great number of young, heroin-addicted offenders who regularly appeared before the courts. Subsection (1) reminded me specifically of one 14-year-old, who had committed more than 20 dwellinghouse burglaries. It was important for a court dealing with that child—that is what he was—to be as fully informed as possible.

As it happened, that child had a family—he had a very supportive mother, who used to come to court. She presented evidence that he was, indeed, a heroin addict. In due course, that led to his receiving assistance with his habit. However, the first step that any individual who is addicted to a class A drug must take is to accept that they have a habit. When dealing with children, the court should be made aware as early as possible of the existence of such a habit.

David Heath (Liberal Democrat, Somerton and Frome)

I do not disagree with the points that the hon. Gentleman is making, but were his clients not referred to a youth offending team? Was there no analysis of their potential behaviour, including substance abuse? Were not such reports part of the pre-sentence reporting procedure—even without the provision in the Bill?

Ian Lucas (Labour, Wrexham)

A reference may indeed have been made, but there was no specific independent assessment or knowledge of whether the individual that I mentioned was a drug addict, and that is precisely what subsection (1) will allow the court to have. For the life of me, I cannot see how it would prejudice the best interests of a child defendant for the courts to be made aware of the considerable problem that he has.

Graham Allen (Labour, Nottingham North)

Would my hon. Friend, with his great experience, accept that he might not even have encountered that child at the age of 14 had the child been able to take a simple swab test at the age of 10?

Ian Lucas (Labour, Wrexham)

That may indeed be the case. My experience does not stretch as far as 10-year-olds, but I know that the problem has been getting worse since the time when I was practising. There may be a case for lowering the age, but there is no case whatever for the amendment.

Hilary Benn (Labour, Leeds Central)

I confess that I have not been briefed to debate the addictive qualities, or otherwise, of tea, although I must admit to some personal experience—[Interruption.] No, I will not take any interventions on that point.

We have ranged so widely in debating the amendment that I find it hard to conceive of further arguments that might be brought to bear when we finally get to amendment No. 624. Indeed, the hon. Member for Beaconsfield (Mr. Grieve) might want to say, ''I draw the Committee's attention to the remarks that I made a moment ago.''

In essence, we are revisiting an issue that we debated at considerable length on clauses 9 and 10. It might be helpful in disposing of the amendment if we remind ourselves of what we are talking about.

First, the penalty for refusing to take the test does not involve imprisonment; it is a fine, so there are no grounds for the concern expressed by the hon. Member for Somerton and Frome.

Secondly, my hon. Friend the Member for Nottingham, North may have noticed that subsection (7) allows the Secretary of State to substitute a different age for that set out in the current provisions, which is 14. As drafted, the clause would not permit a pilot for a younger age group, but the Government take the view that 14 is the appropriate age, for all the reasons that I gave when we debated the issue before. However, we want to reflect on experience, and if a case is made for altering the age, the Bill will give us the power to do so.

In essence, subsection (1) is about enabling the court, when considering passing a community sentence, to try if it wishes to get some up-to-date information about class A drug use. That is what we seek to achieve—no more, no less. Why do we specify class A drugs? We do so for all the reasons that have been given in the debate, which were mentioned again in our most recent exchanges. The evidence is absolutely clear: those drugs do a lot of harm, and there is a clear link between class A drug use and acquisitive crime, which is what the provisions attempt to address.

The circumstances will vary: it may have been some time since an offender was first arrested and a drug test was done at that point; there may be some doubt about whether the offender is continuing to use drugs; or the court may wish to supplement the work of the youth offending team, done under the advice and support services for education and training—ASSET—scheme, with a more up-to-date assessment of whether drug use is a continuing problem. It is done at the discretion of the court. For reasons that were powerfully put by my hon. Friends, it is intended to assist in dealing with the imprisonment of young drug addicts over the age of 14.

The arguments made by the hon. Member for Somerton and Frome for the need to ensure appropriate treatment were absolutely right. We have already made it clear—we will doubtless come back to the point when we reach clause 160—that when a court imposes a community sentence, it can make a range of disposals. Imposing a requirement for drug rehabilitation will clearly depend on the availability of appropriate treatment in the area. We realise that, and more money is being invested to ensure that it is available.

It is a modest but extremely sensible provision. It is wholly consistent, in its purpose and its age range, with clause 10, which we have already debated. I recognise the differing views of the Committee, but the Government are clear that we have chosen the appropriate age.

Dominic Grieve (Conservative, Beaconsfield)

Will the Minister explain, on the assumption that a class A drug is detected, what would be the consequences, in terms of the help or otherwise that is to be provided to the young person?

Hilary Benn (Labour, Leeds Central)

The most obvious one, under clause 160(1)(i), which we shall debate later, is that the court could decide to impose a drug rehabilitation requirement as part of the community sentence. That is the purpose. Clause 145 would allow the court access to the latest information, if it wishes to have it, when taking a decision about the appropriate disposal of a case.

David Heath (Liberal Democrat, Somerton and Frome)

I am going to set aside the remarks of the hon. Member for Beaconsfield on his amendment, Mr. Illsley, because I think that you were quite right to suggest that they were a little premature.

Humfrey Malins (Conservative, Woking)

But effective.

David Heath (Liberal Democrat, Somerton and Frome)

However effective or otherwise they may have been, they were not in order.

I respect the position taken by the hon. Member for Wrexham (Ian Lucas), and I am grateful for his comments. However, my concern is ensure that value is added to the process—that proper rehabilitation and treatment will be available for young people who find themselves taking class A drugs. Although the Minister's response has given me some satisfaction, we shall have to wait to discover whether the sort of assistance that is needed will be provided.

The hon. Member for Nottingham, North always seems to patronise everyone who happens not to live in Nottingham's inner city. He gives a Raymond Chandler gloss to the mean streets of Nottingham, as if the rest of us know nothing of crime and its consequences. He ought to get out more, because crime affects the whole country. It affects towns small and large, villages and cities, and there is ample research to show that no part of the country is immune from the problems, and that children are exposed to drugs at school at a very young age.

My county council and I engaged in some interesting research with the Home Office to look at the presence of drugs in Somerset schools. It showed that there was practically no difference between Somerset schools and city schools in the access that their pupils had to narcotics. That came as a salutary piece of evidence. If I were to mention that, on the edge of my constituency, we have the Glastonbury festival nearly annually, the hon. Gentleman may understand that there is a certain amount of drug use in my constituency. I hope that he will not patronise me by pretending that problems exist in his constituency only.

Ian Lucas (Labour, Wrexham)

Does not that make the amendment even more difficult to understand?

David Heath (Liberal Democrat, Somerton and Frome)

Not at all. Let me be clear: I also believe in listening to professionals who work daily with children in my constituency. I said that I respected the hon. Gentleman because he has had that experience. I also respect the views of organisations such as Barnardo's and The Children's Society that work daily with children who take drugs. When such organisations express their concerns about subsection (1), those concerns should be properly debated in Committee, and the Minister should properly respond to them. Amendment No. 652, among others, was tabled on the basis of such

organisations' submissions in order to probe the Government's intentions.

I hope that the hon. Gentleman will understand that there are serious arguments to be made. My concern is to compare the value added by this process to the youth offending team's analysis of the behaviour of a child on charge, its reports and the programme of rehabilitation that it may be able to organise. I hope that the Government are taking the problem seriously and that they will ensure that all children covered by subsection (1) have an appropriate programme of rehabilitation backed up by medical and other support that they need to ensure that, by the time they are a little older, they will not be prey to addictive drugs and will have lost the crime habit that so often accompanies drug use. I have been explicit over the years in saying that there is a close connection between the two.

I intend to withdraw the amendment, but we need to witness the effectiveness of the legislation in ensuring that every child in this position receives guidance and help. They are still children. I am sorry, but however aberrant a 14-year-old's behaviour is, he or she is still in my book a child in need of guidance and help. The effectiveness of local government in providing the help that those individuals need will be the test of whether the legislation works. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 624, in

clause 145, page 81, line 14, leave out 'specified Class A'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments:

No. 677, in

clause 145, page 81, line 14, leave out 'Class A'.

No. 678, in

clause 145, page 81, leave out lines 39 and 40 and insert

' ''specified drug'' means a drug which is a specified class A drug for the purposes of Part 3 of the Criminal Justice and Court Services Act 2000 (c.43) or which is specified by an order made by the Secretary of State.'.

Dominic Grieve (Conservative, Beaconsfield)

As may have been apparent from my having jumped the gun earlier, the purpose of amendments Nos. 624, 677 and 678 is to allow the Secretary of State to nominate other than class A drugs for testing. It is as simple as that. Amendment No. 624 is a probing amendment designed to elicit from the Minister a justification for confining testing to class A drugs and to give the community an opportunity to consider whether it would be valuable to ascertain whether somebody is taking other drugs when he is due to come up before the court.

I add to my previous comments by saying to the hon. Member for Brighton, Kemptown (Dr. Turner) that the amendment has nothing to do with the amendments about ages 16 and 17, which feature in the next group. He was jumping the gun as much as I was. I shall leave those ages until the next group of amendments.

May I recapitulate? The view that I have always taken—and I should be interested in the views of other hon. Members—is that people may be addicted to a large number of substances, including class B drugs and other drugs besides class A drugs, and that dependence on their regular use may well be a sign of psychological problems that need to be addressed, in the context of crime. If proper treatment and rehabilitation can be provided, there is a value to ascertaining whether such people have the drugs in their system. That is the point. It has nothing to do with whether cannabis use should be treated as criminal. The issue is one of public health, about whether a problem needs to be dealt with in the context of the person's criminality, once they have been found guilty of an offence.

I do not accept the argument that the issues are so unrelated to whether someone commits crime that they are irrelevant. If someone commits crime and is dependent on alcohol, there is a link, in my view. If someone commits crime and has a psychological dependence on the regular use of cannabis, that needs to be dealt with as a public health issue. As I said earlier, other countries take a more serious approach and provide help to those who are—my hon. Friend the Member for Witney will have to forgive me, but this is the word I use—addicted. I accept his point about the distinction between physical and psychological addiction, but it is still addiction, and it is still a problem for society that needs to be tackled. The question is how best to do that.

I accept that there may be arguments that for the particular purpose of the clause we should confine testing to class A drugs. However, if the purpose of the clause is to provide help where it is needed to those who come before the courts and about whom there is evidence of drug addiction, confining it to class A drugs may be a mistake. If it is revealed that a person is addicted to a class B substance such as cannabis—or indeed a class C substance such as cannabis—that is an important issue for the court to take into account in deciding on the proper sentence. It has nothing to do with anyone's view about the legalisation or otherwise of cannabis, or about its prevalence or the possibility of its being used in a social context without harm. Alcohol can be used in a social context without harm, and most members of the Committee probably do that quite often. Many people's lives are destroyed by alcohol and they need help for their addiction to it.

John Mann (Labour, Bassetlaw)

The hon. Gentleman missed a golden opportunity to table a far more effective probing amendment, and I am surprised at him. His amendment misses the point of the clause. The question of coercion comes into play in relation to potential consequences—reducing crime and influencing the offender's well-being. It seems absurd to me to think that expanding what is proposed—and in essence setting up a research base showing what substances, including nicotine, people take—would lead to preventive measures through community service.

There is a correlation between teenage nicotine use and future criminal activity. That is researched and demonstrable. I have a researcher who is drawing

together every major piece of work on this subject in the English language, and several in translation, as a resource base of medical evidence on addiction. A great deal of what is claimed is wholly inaccurate. However, there is no evidence to suggest that nicotine is the most addictive substance or that it requires treatment to have an impact on crime. That is the point. A better amendment would have been to leave out the word ''may'' in line 2 and insert the word ''will''. Perhaps the Minister will consider that.

In the Netherlands—a country that has a very liberal view on drugs—drugs testing for offenders is compulsory; there is no ''may'', there is ''will''. They believe that there is a direct correlation between an offender's criminal act and his use of class A drugs. It is not just a question of a research base of what might be possible; it relates directly to the treatment options and the community sentences.

Dominic Grieve (Conservative, Beaconsfield)

Can the hon. Gentleman help the Committee? For what drugs are people compulsorily tested in the Netherlands?

John Mann (Labour, Bassetlaw)

I cannot give a definitive list, but there is a clear separation between testing for hard drugs and for soft drugs. That may or may not assist the Committee, as the classification for amphetamines, for example, may be different in the Netherlands. There is demonstrable evidence that addiction to the two main drugs linked to crime in this country, crack cocaine and heroin, can be successfully treated; although ''success'' may be defined in various ways. One of the problems in this country has been the lack of drugs testing, so I wholly oppose the amendment. However, I hope that the Minister will consider whether the word ''may'' is too loose; we should consider saying that we ''will'' categorically test for class A drugs.

David Heath (Liberal Democrat, Somerton and Frome)

We have already had half the debate, so there is no point in going over old ground. The hon. Member for Beaconsfield made an important point that he somewhat dulled by his assertions on cannabis, which were questioned by the hon. Member for Witney and others. They were unhelpful in the prosecution of his case. There was a moment of danger that in a Committee dominated by lawyers the medics would have their revenge and subject him to long discourses on physical and psychological addictions, which, if I remembered entirely my neurophysiology, I could attempt to do. However, that would not help the Committee.

The Minister must ponder whether a 14-year-old should undergo drugs testing. It seems curious that it is then limited to class A drugs when there are other drugs of choice that are equally damaging to the health and well-being of a child. Alcohol is the most serious drug of all.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman pre-empts the question that I was about to ask him. Alcohol is an important factor in crime that should be considered. If somebody with a record of offences committed under the influence of alcohol comes before the court, the court ought to take that into account and to highlight the need to go beyond confining oneself merely to class A drugs.

David Heath (Liberal Democrat, Somerton and Frome)

I entirely agree. We come back to the purpose of the provision. Is the point is to guarantee the future welfare of the individual and to ensure that, as far as possible, help is given to break the pattern of behaviour that has led a person into committing an offence? If so, and the consumption of a drug, whether it be alcohol or amphetamines—something that is not a specified class A drug—is a contributory factor, the solution offered by the Bill is incomplete. Will the Minister explain the rationale? Does he not believe that it is important to treat other substances, and that the court should take them into consideration in arriving at an appropriate sentence? If not, why not?

I do not seek to diminish the importance or the increased risk to health of class A drugs—far from it; I have no doubt about it. Equally, I know that the consumption of other drugs leads to patterns of behaviour that are damaging to the individual, and that might encourage him into committing offences. Alcohol is probably the worst offender in that respect, certainly worse than cannabis. The Minister must explain why he has chosen to limit the scope of his proposals in such a way.

Humfrey Malins (Conservative, Woking)

My arguments will be brief, but they will be powerful, and I hope that the Minister will accept them.

What is the purpose of limiting the search to class A drugs? The clause says that a court that is considering passing a community sentence may make an order to ascertain whether the offender has a drug in his body—not class B or class C, but class A only. Why limit it? I do not see the point. It might be helpful for the court to make an order to see whether a class B or class C drug is in his system. What is the harm in the amendment?

I hope that the Minister will address absolutely specifically my next point. A defendant appears before the court having driven his car in a wild and strange fashion through Wandsworth. When the police breathalyse him, they are gobsmacked because there is not the slightest sign of alcohol in his body. However, they put two and two together and make four. He is arrested and charged with driving while under the influence of drink or drugs. The sample reveals that his body contains class B drugs. If the Minister wants me to list them, I have a case in mind and I shall do so. The sample comes back and he pleads guilty—a week, a month or several weeks later, depending on the case. What does the court do?

The court might have it in mind to pass a community sentence. Driving while under the influence of drugs is an offence under the Road Traffic Acts—the offence is not limited to class A drugs. The court, wanting to make a community sentence order for the benefit of the defendant and of society, finds that the defendant's analysis shows that his body contained class B and class C drugs that affected his driving so that he was guilty of the offence, but no class A drugs. What is it to do?

David Cameron (Conservative, Witney)

I want to make the briefest of contributions, having listened carefully to my hon. Friend the Member for Beaconsfield and having sat on the Home Affairs Committee. Can cannabis use be

connected to offending behaviour? Yes, it can, in some circumstances. As my hon. Friend said quite persuasively, it can be part of a lifestyle that is perhaps relevant. Can it be relevant to understanding the need of the youngster in front of the court? Yes, it can. My hon. Friend made a persuasive case for that. On the basis of what I have said my times in Committee—that the relevant information should be put in front of the court—I am not that unhappy with the amendment. However, I want to make two points that I hope the Minister can respond to.

First, will the courts understand whether the cannabis use has anything to do with the offending? I am all for putting the information in front of the courts. My hon. Friend tells me always to beware of batty judges. Here I turn his words back on him: will the judge and the court understand that there is any connection between the possibility that the young man has done something wrong and the possibility that he is also an occasional cannabis user? It is also worth thinking for a second of a possible case in which someone appears in front of the court for, say, a minor public order offence, such as over-exuberance at the boat race or a football match. If that chap happens to have had a little bit of cannabis some weeks before and that fact comes out, as it would under the amendment, is that relevant to the court? Is that fair on the young person in question? He has done something wrong, such as committing an offence at a football match, he is in front of the court, the court is being told about it, he is going to be punished for it, and then suddenly it becomes public that this guy has taken cannabis, maybe only once in his whole life, two weeks before. Is that fair on that person? It has nothing to do with his offending behaviour. We must consider that point.

My second point, which might be significant, although I might have got it entirely wrong, is that we must think about how long each drug stays in the body. That has not been mentioned at all. Cannabis stays in the body for many weeks. Class A drugs get out of the body very quickly. I am slightly concerned. If we accept the amendment, what message will we send to the offender who is a cannabis user? If they are fully aware of the amendment, they might be tempted to stop using cannabis before they go to court, and if they feel that they want to take a drug, they might start using something harder that gets out of the body more quickly.

We know that that happens in prison. When there is a testing regime, inmates know that cannabis stays in the body longer, so they are driven—by choice—to taking class A drugs. That is one of the reasons for the class A problem in prison. I fear that my hon. Friend's amendment, well moved and argued as it was, does not address that point. I shall be interested to know what the Minister's reflections are on that point.

Hilary Benn (Labour, Leeds Central)

I shall endeavour to respond to all the points that have been raised in this interesting debate. I shall come on to the central thrust of the argument of the hon. Member for Beaconsfield. My hon. Friend the Member for Bassetlaw (John Mann) raised the may/must issue. It might be helpful if I remind hon.

Members that a community order, which the court can decide to specify under clause 160, can include a drug rehabilitation requirement that provides for compulsory testing. In other words, as soon as the court—[Interruption.] Well, it is after; I appreciate that. My hon. Friend made a point about ensuring that there is continued adherence to the requirements of the drug rehabilitation order. Compulsory testing is provided for as part of that regime, and that is specified in clause 189.

In the case of the real life example cited by the hon. Member for Woking (Mr. Malins), a drug rehabilitation order, which is available to the court under these arrangements, can be made. It can apply to any drug use. I hope that that answers his point. He will see that clause 189(2)(a)(i) states that

''A court may not impose a drug rehabilitation requirement unless it is satisfied that the offender is dependent on, or has a propensity to misuse, drugs''.

That covers the example.

Humfrey Malins (Conservative, Woking)

But I assume that it means exactly what I said it means, namely that the court in the scenario that I envisaged cannot order a drugs test on the defendant.

Hilary Benn (Labour, Leeds Central)

As I understood the hon. Gentleman's example, the evidence of the drugs was already before the court. In weighing that up, it could decide under clause 189 to make a drug rehabilitation requirement, which can apply to a propensity to misusing drugs in general. I hope that that eventuality has been catered for. I can see that the hon. Gentleman is not satisfied, but I think that that deals with the case that he described.

The clause also provides the opportunity for the type of specified class A drug to be widened by order of the Secretary of State. That will give us greater flexibility should other drugs come onto the scene that—we learn from evidence—have a close correlation with acquisitive crime.

In giving the example that he gave in disagreeing with the hon. Member for Beaconsfield, the hon. Member for Witney made a good argument as to why it would not be sensible to extend the provision in the way that the amendment proposes. However, the principal argument against the amendment is the one that has run as a thread throughout our debates on drugs. The clause focuses on class A drugs because the evidence is overwhelmingly clear that that is the group of drugs that has the closest link with acquisitive crime and offending. We have heard that from hon. Members of all parties who, in different constituencies with different make-ups, are conscious of the problems that it creates. The case for the clause is that it is designed to focus effort where it can really make a difference: it requires us to concentrate on users of a certain class of drugs, the imprisonment of whom will make the biggest impact on crime and therefore on the communities that all of us represent.

Dominic Grieve (Conservative, Beaconsfield)

I am always conscious that, as it says on the firework, having lit the blue touch paper one should retire. Perhaps I stayed too close to the firework when it started to go off. I am grateful to

the Minister for his answers, and I do not disagree with the points that he has put. As the debate has gone on, there has been a closer meeting of minds on some issues. Equally, some Committee members seem to have made a blind assumption as soon as I mentioned the word cannabis that I was about to argue about it in the wider way in which we have done in Parliament over the past three years. Rationality does not often come into that discussion.

My concern is that clause 145, as the Minister has said, is linked intimately to the making of the community sentence order, as set out in clause 160. It has both purpose and value. Its purpose is to ensure that somebody is punished or restrained. Underlying it—this is something that I consider to be very valuable—is the idea that the problems affecting the life of the person concerned may be addressed, especially if they are seen as having a link with his offending. I entirely accept the Minister's point about concentrating on class A drugs because of their close correlation with acquisitive crime—people who are addicted to them have to spend a lot of money to get them—because whether people are addicted to crack cocaine psychologically or to heroin physically, they are likely to commit such crime. My constituency is in the Slough police district, and on the basis of evidence from Slough, the police believe that 70 per cent. of all acquisitive crime in the area is fuelled by class A drug use. I do not know whether that is absolutely correct, but I have no difficulty accepting the scale of the problem associated with class A drugs.

That said, I am also concerned that the problem of addiction among young children to a range of substances that have a negative effect on their lives is not being properly addressed in this country. That may be partly because we have a primary health care system, because the situation here is in sharp contrast to that which exists in some other countries, including the United States, the Netherlands and Sweden. It is a matter not of whether drug use is criminalised, but whether it is picked up through the court system or some other system so that something can be done about it.

Many of the offenders whom I have met have problems that are associated with, but go beyond, their addiction to class A drugs. That is not to say that all people who use those substances commit offences, but in my experience and that of people with whom I have discussed the issue, there is a correlation. The question is whether something will be done to pick those people up. A community order, or indeed any punishment that intends to rehabilitate, requires the co-operation of the offender. It must also encourage him to apply his mind to the nature of the offences that he has committed, the reasons why he committed them and their impact on other people. That is one of the principal bases of the rehabilitation aspects of community orders and other sentences.

If someone regularly turns up to carry out their community order or sentence when they are under the influence of alcohol from drinking binges the night before, or if the mind of a regular and dependent cannabis user is permanently influenced by the substance, that person is in a very bad state to

undertake any community order with profit. It is most unlikely that the minds of such people will be sufficiently clear to enable them to apply themselves to their rehabilitation and to understanding the reasons for their crime, as community orders envisage. The reasons why such people commit crimes may have nothing to do with their cannabis addiction, but if someone is regularly using cannabis while undergoing a community order and the fact is not being picked up, the process will not work well. In those circumstances, we should keep open the possibility of testing for other substances.

To return to what I said to the hon. Member for Somerton and Frome, when I wrongly started to talk to my amendments although I should have been discussing his, whether the proposal is valuable depends on what is done if drug abuse is picked up. If drug testing is merely a way of humiliating people going though the court process, it is not a good idea. As my hon. Friend the Member for Witney said, some judges will not know what to do with the information if they get it, which might be compelling grounds for not taking the suggested approach. I shall certainly not press the amendment to a vote, because it was tabled as a probing amendment. The Government want to tackle crime in its generality, and I fully support them in that. They want to take an overall view. There is a great meeting of minds between political parties about the conveyor belt of crime, the problems of societal breakdown that lead to crime and the need to address those problems and not simply to say that people must be punished. Punishment serves little purpose, particularly with the young, unless one puts programmes in place to integrate them into society, make them feel valued, and make them able to participate, to get work and to sustain jobs. We are not doing those things. We are not going about it the right way.

The use of addictive substances that affect one's reasoning is an important issue, and that is why I tabled the amendment. I do not intend to press it to a Division. I am grateful to the Minister for his response, but I hope that the Government will continue to bear in mind what I have said. I hope also that they will continue to study evidence from foreign countries, where such issues are taken much more seriously and where they are treated as a public health matter.

David Heath (Liberal Democrat, Somerton and Frome)

Clearly we agree about the need for proper rehabilitation measures. Does the hon. Gentleman agree also that young people will not be done a great service by a court order that requires them to attend a programme that is essentially adult-focused rather than child-focused? That would probably have a deleterious rather than a positive effect. The Government need to develop appropriate child-focused treatment centres to deal with the problems of that age group.

Dominic Grieve (Conservative, Beaconsfield)

I agree. I would expect it to be common ground among us that it is desirable—the Government accept it, even with class C and B drugs—to discourage people from using drugs. For that matter, the Government discourage people from smoking and from drinking excessive quantities of alcohol. All those

things tie together. They are important public health issues, but they have a link with societal breakdown and crime. I do not want to overstress the point, but we all want the same.

I rather hope that no Committee member is addicted to anything, but that makes it difficult for us to understand how hard it can be for someone who is addicted, whether psychologically or physically, to escape that dependency. The problem in this country is that although we intervene, we do not put in sufficient resources to deal with the underlying problem. In contrast, drug rehabilitation in the United States, including rehabilitation for people who consider themselves to be psychologically dependent on cannabis, is taken very seriously. Resources are put into rehabilitation because most people come into the system through the criminal justice system, and the breaking of their addiction is seen as a key element in ensuring that reoffending does not occur. That is not necessarily because offending is acquisitive, but because if the brain is not properly engaged people have distorted cognitive perceptions. It is as simple as that.

We are a long way from that. In fairness to the Minister, however, even amending clause 145 as I propose would not solve the problem. The problem is not what happens under the clause but what happens afterwards. However, I wanted to highlight the issue because it is of great importance. Just as parents pick up on their children's problems when they first go to primary school—that is their first impression of whether the children have adjusted—so, when people start coming through the court system, we should remember that we are dealing with the young and place an emphasis on their welfare. The Minister does want that, as we have seen from other parts of the Bill, but we are missing the opportunity to pick up on what may be serious underlying problems—problems that may be independent of the crimes that those youngsters have committed but may be closely linked to their ability to live as involved and adjusted members of society. If that is what the Government want to achieve, we may be missing an opportunity. That said, this was a probing amendment, and I beg to ask leave to withdraw it.

Amendment, by leave, withdrawn.

Hilary Benn (Labour, Leeds Central)

I beg to move amendment No. 547, in

clause 145, page 81, line 17, leave out '16' and insert '17'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following:

Amendment No. 625, in

clause 145, page 81, line 17, leave out '16' and insert '18'.

Government amendment No. 548.

Amendment No. 654, in

clause 145, page 81, line 30, leave out '16' and insert '18'.

Government amendments Nos. 569, 570, 591 and 592.

Hilary Benn (Labour, Leeds Central)

This series of amendments would make the age at which an appropriate adult should be present consistent with the age on which the Committee agreed when it debated clause 10. It is clearly preferable that we have a consistent policy across the piece, and we debated clause 10 at great length, although not all hon. Members concurred. However, it would clearly be appropriate to make the Bill consistent by amending the present provisions on drug testing and treatment.

Humfrey Malins (Conservative, Woking)

I want to speak to amendment No. 625. It would be an unhappy situation if one's 16-year-old son was the subject of an order for a drug test, but no appropriate adult could be with him. Boys of 16 or 17 can be very immature, and some have not reached puberty. They can be very tearful, depressed and stressed.

There has to be a cut-off age in life, and 18 is generally all very well. What about these 16-year-olds? I have seen enough of them to know that I would want an adult to be holding their hand through virtually every activity that they undertook, because they are so vulnerable.

The clause states:

''Where the offender has not attained the age of 16, the order must provide for the samples to be provided in the presence of an appropriate adult.''

As I read it, that means that an offender who is aged 13, 14 or 15 and three quarters, will get an appropriate adult—but what happens if he is 16 or 17? The amendment is intended to find out. Should we not change the age to 18?

David Heath (Liberal Democrat, Somerton and Frome)

I want to speak to amendment No. 625, and to amendment No. 654, which would have the merit of ensuring internal consistency in the clause if amendment No. 625 was made.

We have already rehearsed the arguments, so there is no point in repeating them. There is a difference between the Minister and Opposition Members as regards the appropriate age. I accept that there is great merit in having consistency in the Bill, and I would be perfectly happy to accept the Government amendments—with the caveat that we simply do not agree on the appropriate age.

Hilary Benn (Labour, Leeds Central)

To answer the hon. Member for Woking, amendment No. 547 will mean that the 16-year-old will have to have an appropriate adult present, but that the 17-year-old will not.

Humfrey Malins (Conservative, Woking)

Why not? Cannot the Minister think about that? It is a fair question. Does he ever see the frightened faces of 17-year-old boys, who are very young and vulnerable? Why 17? What is wrong with 18?

Hilary Benn (Labour, Leeds Central)

The hon. Gentleman's original question related to a frightened 16-year-old, and I answered it. Now he raises the issue of 17-year-olds. In the end, one must reach a view about the appropriate cut-off point. As the hon. Member for Somerton and Frome said, we have had that debate, and the amendments simply reflect the Committee's decision. They will ensure internal consistency in the Bill, and that is why the Government tabled them.

Humfrey Malins (Conservative, Woking)

If internal consistency, rather than fairness and justice, is the great objective in life, there is little that I can do about it. However, I happen to know that some Labour Members rather agree with me, although I shall save them embarrassment by not naming them. I can tell by their eye contact that they agree with me. There is nothing wrong with changing the age to 18. However, internal consistency is a byword in our lives and we must not worry about the merits of the argument, so I shall not press amendment No. 625 to a vote.

Amendment agreed to.

Amendment made: No. 548, in

clause 145, page 81, line 30, leave out '16' and insert '17'.—[Hilary Benn.]

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 626, in

clause 145, page 81, line 31, after 'guardian', insert 'or close adult relation'.

We have argued about this point already, and I shall not take up much time, since I know that it is on the Minister's mind. The amendment concerns who is the person qualified to be with a young person. I was concerned that the Bill elsewhere refers to a parent or guardian, or, if the young person is in care, a person from the relevant establishment. I made the point a few days ago that an awful lot of young people turn up with cousins to look after them, or grannies or aunties. I wanted a wider definition, because I was not sure whether in this context the term ''guardian'' would be defined as a legal guardian. In 99 cases out of 100 the granny who is looking after the youngster, and who has effective control—rightly, because grannies are brilliant at that and do a lot of good work in the courts—might be excluded. I think that the Minister agreed about that.

John Mann (Labour, Bassetlaw)

I ask the hon. Gentleman to consider the problem of second-generation heroin addicts, in which the grandmother is looking after the grandson or granddaughter, who has a growing drugs problem, and the mother is perhaps a chaotic drug user. Normally, and legally, she might be the responsible adult, but she really has no child care or family responsibilities at all. That is particularly prevalent in communities such as mine. When the young person is arrested, it is invariably the grandmother who goes to the police station. She is the key figure.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman is quite right and reinforces my point. In his community, and indeed in the community of the courts, it is statistically likely that the person turning up with, looking after, and giving bed, breakfast and supper to the youngster will be an auntie, a grandmother or a ''cousin''—something with a wide definition—or a brother or sister. This is a brief repetition of the debate that we had the other day. I hope that the Minister will be able to consider the point.

Hilary Benn (Labour, Leeds Central)

While the hon. Gentleman was speaking I was just refreshing my memory on the earlier debate. It might be helpful if I were to offer him the same reassurance that I did then. I shall be consistent by quoting my words from the debate on clause 10, in which I told the Committee:

''A guardian may include a close family relative if the guardian has in effect care and responsibility for the child. A close family relative''—

my hon. Friend the Member for Bassetlaw just gave an example on this point—

''may not always be the appropriate adult to be called on, depending on how well or otherwise family members get on together. It is my understanding that if the young person says that there is someone whom they wish to call in, the police will accede to their wishes.''—[Official Report, Standing Committee B, 7 January 2003; c. 165.]

In truth, that is the most convenient way of finding an appropriate adult, rather than having to contact someone who gives up their time voluntarily to act in that capacity. With those safeguards and sensible interpretations, it would not be sensible to change the definition in the way that the amendment suggests.

Humfrey Malins (Conservative, Woking)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 145, as amended, ordered to stand part of the Bill.

Clauses 146 and 147 ordered to stand part of the Bill.

Clause 148 - Fixing of Fines

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 627, in

clause 148, page 82, line 42, at end insert

'and the circumstances of the offender'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following:

Amendment No. 496, in

clause 148, page 83, line 3, leave out

'the financial circumstances of the offender'

and insert

'the offender's weekly disposable income and his readily available capital'.

Amendment No. 670, in

clause 148, page 83, line 3, leave out

'the financial circumstances of the offender'

and insert

'the offender's disposable weekly income'.

New clause 5—Power to increase fine—

'(1) This section applies where a court has fixed the amount of a fine and the fine has not been paid in full.

(2) If it becomes known to the court that the offender has a higher weekly disposable income or readily available capital than was known to it when it fixed the level of the fine it may increase the level of the fine.'.

Humfrey Malins (Conservative, Woking)

Under the amendment the provision would read ''The amount of any fine fixed by a court must be such as, in the opinion of the court, reflects the seriousness of the offence and the circumstances of the offender''. It is a wider—I will give way to the Minister, as he may pre-empt my remarks; if he does I shall have only one more little point to add.

Hilary Benn (Labour, Leeds Central)

I draw the hon. Gentleman's attention to subsection (3), which states that

''a court must take into account the circumstances of the case, including, among other things, the financial circumstances of the offender''

The point that the hon. Gentleman wishes to deal with in his amendment is already covered in the clause.

Humfrey Malins (Conservative, Woking)

I noted that the matter was dealt with in subsection (3); however, what comes first is always thought to be most important. Our amendment would have been much tidier drafting. There is one critical point that I hope the Minister will consider. I spoke a great deal the other day about remitting fines and London fines, but the Magistrates Association has guidelines issued by a very important body that issues guidelines for fines. When looking at them I sometimes think to myself that they seem slightly unrealistic.

In the old wild west, young men had to have a horse. The same principle applies to young men in London: they must have their wheels. Thousands of young men have beat-up old heaps worth about £60—at most. They are untaxed and uninsured, but they are the modern equivalent of the horse for getting around. The problem is that most of these young men are either out of work or not saying that they are in work, and up they come for the standard no insurance offence. They probably have not had an accident because they are probably very good drivers. That is where the guidelines for the fine come in. You might be shocked to hear, Mr. Illsley, that some of the guidelines suggest fines of £500 or £600 for no insurance. That is all very well for the Minister and me if we negligently fail to insure our cars, or the Government car in the Minister's case. I have never been uninsured, apart from one short lapse when I forgot in the 70s. I digress.

I merely point out that whacking an 18-year-old with a fine for more than 10 times what his car is worth leads to the problems that I outlined the other day. Perhaps some of those present could have a quiet word with the Lord Chancellor's Department to see whether it can do anything to take into account the circumstances of the case and the circumstances of the offender as he presents them to the court. That might lead to a reduction in the huge arrears of unpaid fines.

Graham Allen (Labour, Nottingham North)

The purpose of amendment No. 496 is to make fines more realistic by making the court take into account

''the offender's weekly disposable income and his readily available capital''.

That ties in with new clause 5(2), which states:

''If it becomes known to the court that the offender has a higher weekly disposable income or readily available capital than was known to it when it fixed the level of the fine it may increase the level of the fine.''.

It covers not only cases of deceit or concealment by the offender, but any other change of circumstances, such as winning the lottery or the pools. I would be grateful for the Minister's comments on that.

David Heath (Liberal Democrat, Somerton and Frome)

I want to speak to amendment No. 670. Just to show that occasionally I can point in the same direction as the hon. Member for Nottingham, North, there is a clear similarity between amendments Nos. 496 and 670. The hon. Member for Woking has

already set out his concerns. Fines are becoming a less valuable tool in the armoury of courts, simply through the inability to relate them to the capacity to pay. I am told by Napo, the trade union for family court and probation staff, that in 1992 fines accounted for 43 per cent. of disposals for indictable offences in the magistrates courts, but by 2001 that had fallen to 30 per cent. Over the same period, the use of fines fell from, I think, 6 per cent. to 3 per cent. in the Crown court. The combination is of fines not being used as much and, when they are used, their not being paid, as we heard in a previous discussion about the level of arrears on payments. That is a direct result of the changes that were introduced and the abolition of the unified system.

I do not think that we need to have a quiet word with the Lord Chancellor. Rather, we need to have a quiet improvement of the Bill, in order to ensure that the message is put clearly to those who apply sentences on how they might administer the system better so that the fine is realistic and the chance that it is met is higher.

Hilary Benn (Labour, Leeds Central)

Let me say to my hon. Friend the Member for Nottingham, North and the hon. Member for Somerton and Frome that I understand entirely the intention behind their amendments. However, the impact of the wording would be a narrowing of the scope of the financial circumstances that the court must take into account when fixing a fine, or, in the case of amendment No. 496,

''the offender's weekly disposable income and his readily available capital''.

That is too restrictive, as the ''financial circumstances'' of the offender could encompass factors other than those specified. An obvious example of that would be debts. ''Financial circumstances'' is a more useful term, because the offender might have money or assets, even though they are not working. The full financial circumstances might therefore not be fully reflected in their weekly income. They might have capital that is classed as unavailable at the point of sentence, but that might become available during the payment of the fine. ''Financial circumstances'' is broader.

We do not think that new clause 5 is necessary, because it will in any case be an offence knowingly or recklessly to make a false statement of means to a court at any stage either prior to sentence or during enforcement. There is already a penalty for falsifying means information. The offender would be liable to a fine not exceeding level 4 on the standard scale, which is currently £2,500. Since there is already that power, there seems to be no need to increase the level of the original fine in addition to setting a new fine for falsifying means.

Humfrey Malins (Conservative, Woking)

This has been a useful and mercifully short debate. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Hilary Benn (Labour, Leeds Central)

I beg to move amendment No. 549, in

clause 148, page 83, line 11, at end insert—

'( ) has failed to furnish a statement of his financial circumstances in response to a request which is an official request

for the purposes of section 20A of the Criminal Justice Act 1991 (c.53) (offence of making false statement as to financial circumstances),'.

The amendment affects the fixing of fines. When an offender has been convicted and the court wishes to impose a fine, it must take into account the financial circumstances of the offender before setting the amount of the fine. Under section 20A of the Criminal Justice Act 1991, the court can officially request that the defendant inform the court, in the event of conviction, of his or her financial circumstances, for the purpose of determining the amount of any fine the court may impose.

If the defendant fails to respond to an official request, amendment No. 549 would enable the court to make assumptions about his or her ability to pay and to set a fine regardless of the fact that it has insufficient information about the offender's means to make a proper determination.

The intention is to ensure that the onus is on the defendant to provide, on request, information to the court about his income and expenditure before the court considers the case. The provision aims to provide an incentive for the offender to co-operate so that the court will be able to set any fine at an appropriate level. Moreover, it is more likely that the fine will be paid.

Graham Allen (Labour, Nottingham North)

Are all fines now index-linked to inflation so that we do not have to keep amending the law?

Dominic Grieve (Conservative, Beaconsfield)

No, they are on a standard scale.

Hilary Benn (Labour, Leeds Central)

That was a helpful intervention, albeit from a sedentary position. The answer to my hon. Friend's question is no. They are set out in a standard scale, the details of which I have with me. I shall be happy to provide him with the information.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

David Heath (Liberal Democrat, Somerton and Frome)

This part of the Bill deals with fixing the amount of any fine to be imposed on an individual offender. I would be happy if the Government were to introduce a similar provision for a corporate offender. We do not adequately consider the appropriate level of fines for corporate offenders commensurate with either the seriousness of the offence that may have been committed or the company's assets. I ask the Minister to consider whether the fining regime that applies to corporate offenders is adequate to deter inappropriate behaviour by corporations in future.

Graham Allen (Labour, Nottingham North)

Will the Minister take away the possibility of linking all fines to inflation? If, for example, we were to have another period of Conservative Government during which inflation was rampant, the fine would diminish in real value. Rather than having to keep changing every statute law, can we introduce a provision that links all fines across statute law to inflation?

Hilary Benn (Labour, Leeds Central)

The eventuality about which my hon. Friend is concerned seems remote at present. However, I take his point and I shall draw it to the attention of my colleague who deals with those

matters. I understand what the hon. Member for Somerton and Frome says, but you would immediately rule me out of order were I to respond, Mr. Illsley, because his point ranges much more widely than the modest but important provisions of clause 148.

Question put and agreed to.

Clause 148, as amended, ordered to stand part of the Bill.

Clause 149 - Remission of fines

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 623, in

clause 149, page 83, line 21, leave out from 'circumstances' to end of line 26 and insert

'the Court is of the opinion that it would be appropriate to remit the whole or part of the fine, or compensation or costs it may do so.'.

We are not having much success this morning in persuading the Minister to accept amendments. I urge him, with all the sincerity that I can muster, to listen carefully to the point that I shall make. Clause 149 deals with the remission of fines. Subsection (2) is unnecessarily wordy. My amendment could achieve exactly the same—and better—circumstances.

I want to leave out the question of compensation for the moment because there are big difficulties with remitting it. The wording in the amendment gives the court much broader discretion to take into account all the circumstances on the subsequent occasion.

Some circumstances might not be covered by the provision. For example, a man on a salary appears before the court in January and is fined £500, payable at £100 a month, with the first payment due within 28 days. He makes the first payment on 25 February, but does not pay a penny on 1 March. He is summonsed to come before a means inquiry and does so within a fortnight. The court then makes an inquiry into the offender's financial circumstances and discovers that he is earning exactly the same as he was when the fine was imposed. His mortgage and other outgoings are the same. He cannot produce paperwork to show that he has any other outgoings.

The court makes another inquiry and discovers that, although his financial circumstances are the same, he has a problem. A close family member is very ill and desperately needs an operation or a short holiday. The circumstance has arisen within the past few days, but the inquiry into the offender's circumstances is identical on each occasion. The court is caught by the procedure. Any sensible court will say that it remits the fine and the man should fix the holiday. However, the inquiry has been identical. Not a thing has changed—the person's financial circumstances might even have improved. Where, in that case, is the court's discretion? It is much tidier to use appropriateness as a test.

The Minister is smiling so much that he obviously has a technical answer that will bring more consistency to the Bill. It would be realistic to let the court state what it deems to be appropriate—never mind financial inquiries; they are two a penny. What is the problem with that?

Hilary Benn (Labour, Leeds Central)

I smile for a couple of reasons. One, the hon. Gentleman has identified. The other is that the more of the hon. Gentleman's contributions I hear, the more I realise that were I ever to appear before the courts, I should be more than happy to appear before the hon. Gentleman; he is clearly such a decent human being.

I remind the Committee that the clause is only an issue if the offender is not upfront and honest with the court about his or her circumstances. That is what it is about.

Humfrey Malins (Conservative, Woking)

Is it?

Hilary Benn (Labour, Leeds Central)

Yes, it is. The previous clause makes that clear. In the circumstances described by the hon. Gentleman, the provisions would apply in addition to the existing wide power to remit, which—as in the hon. Gentleman's example—is based on a change of circumstances since the fine was imposed. That is provided for under section 85 of the Magistrates' Courts Act 1980.

As regards compensation, the amendment is unnecessary. Section 133(1) of the Powers of Criminal Courts (Sentencing) Act 2000 provides for the offender to apply to the court to have a compensation order reduced or discharged. There is not a similar provision in relation to costs. However, guidelines state that

''an order for costs to the prosecutor should never exceed the sum which, having regard to the defendant's means and any other financial order imposed on him, he is able to pay and which it is reasonable to order him to pay.''

In addition, defendants can make representations regarding the amount of costs, under section 17 of the Prosecution of Offences Act 1985, which should ensure that they are not disproportionate to their means.

Humfrey Malins (Conservative, Woking)

I am sure, Mr. Illsley, that you and I are both greatly comforted by the Minister's remarks. In view of the important debates that lie ahead of us, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 149 ordered to stand part of the Bill.

Clause 150 - Savings for powers to mitigate sentences

Graham Allen (Labour, Nottingham North)

I beg to move amendment No. 488, in

clause 150, page 83, line 44, at end insert—

'(1A) Section 135(2) does not prevent a court, after taking into account such matters, from passing a community sentence even though it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that a community sentence could not normally be justified for the offence.'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments:

No. 489, in

clause 150, page 84, leave out line 1 and insert

'Nothing in the sections mentioned in subsection (1)(a) to (d)'.

No. 490, in

clause 150, page 84, line 7, at end insert—

'( ) Subsections (1A) and (2) are without prejudice to the generality of subsection (1).'.

No. 491, in

clause 150, page 84, line 8, leave out 'those sections' and insert

'the sections mentioned in subsection (1)(a) to (d)'.

Graham Allen (Labour, Nottingham North)

The amendments would confer a clear discretion on courts to pass a community sentence even where a short custodial sentence would have been justified. The amendments are so obvious and rational that I would be staggered if the Minister were not to accept them.

Hilary Benn (Labour, Leeds Central)

The amendments would provide an extremely helpful indicator to the courts that, despite the seriousness of an offence or combination of offences, they should be able to pass a community sentence, provided that there are relevant mitigating factors. The new generic community sentence will, in certain circumstances, provide a punitive response equal to that of a short custodial sentence, and it can offer a great deal of flexibility in addressing the need to rehabilitate offenders. I am happy to accept my hon. Friend's amendments.

Dominic Grieve (Conservative, Beaconsfield)

I am delighted to hear the Minister say that; I, too, thought that the amendments tabled by the hon. Member for Nottingham, North were a good idea.

Amendment agreed to.

Amendments made: No. 489, in

clause 150, page 84, leave out line 1 and insert

'Nothing in the sections mentioned in subsection (1)(a) to (d)'.

No. 490, in

clause 150, page 84, line 7, at end insert—

'( ) Subsections (1A) and (2) are without prejudice to the generality of subsection (1).'.

No. 491, in

clause 150, page 84, line 8, leave out 'those sections' and insert

'the sections mentioned in subsection (1)(a) to (d)'.—[Mr. Allen.]

Clause 150, as amended, ordered to stand part of the Bill.

Clause 151 - The Sentencing Guidelines Council

Graham Allen (Labour, Nottingham North)

I beg to move amendment No. 518, in

clause 151, page 84, line 22, at end insert

'which shall include as deputy chairman the Secretary of State for Home Department, or a person whom he nominates in his stead, and the chairman of the appropriate committee of the House of Commons, or a person whom he nominates in his stead, who, together with the Lord Chief Justice, shall comprise the Executive Committee of the Council'.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments:

No. 519, in

clause 151, page 84, line 24, at end insert

'and the chairman of the appropriate committee of the House of Commons.'.

No. 520, in

clause 151, page 84, line 25, leave out subsection (4) and insert—

'(4) The other members of the council will include at least one of each of the following—

(a) a Lord Chief Justice of Appeal;

(b) a judge of the High Court;

(c) a Circuit judge;

(d) a District judge;

(e) a District judge (Magistrates' Courts);

(f) a lay justice;

(g) a Police Officer;

(h) a Probation Officer;

(i) a Prison Governor;

(j) a representative of a Victims' Organisation;

(k) a representative of the Business Community;

(l) a teachers' representative;

(m) three lay members of the public one of whom shall be over the age of 60 and one of whom shall be under 18;

(n) a representative of exoffenders' institutions;

(o) a local government/crime and disorder partnership representative;

(p) a legal professional, alternately a barrister or solicitor;

(q) a social services representative.'.

No. 521, in

clause 151, page 84, line 31, leave out subsection (5).

No. 541, in

clause 153, page 85, line 21, leave out line 21 and insert—

'(2) The Secretary of State, Lord Chancellor or Chairman of the appropriate committee of the House of Commons must first propose to the Sentencing Advisory Panel that it prepares a report and recommendation prior to any consideration of the Council—'.

No. 638, in

clause 153, page 86, line 17, at end add—

'(ii) the appropriate committee of the House of Commons.'.

No. 687, in

clause 252, page 138, line 8, at end insert

' ''the appropriate committee of the House of Commons'' means any select committee of the House of Commons which the House of Commons may from time to time designate by resolution to be the appropriate committee for the purposes of this Act;'.

Graham Allen (Labour, Nottingham North)

I hope that these amendments enjoy the same support as the previous group. We have reached what I believe is the most important part of the Bill, as it introduces the Sentencing Guidelines Council. I may take a little time to introduce the amendments and explain their consequences, so I shall speak briefly on later points, but it is important to put a few things about sentencing on the record.

First, ordinary people—the public, whom the criminal justice system is supposed to serve—do not have the foggiest idea of how sentencing works. It is incumbent on Committee members to do their bit to persuade the Government to accept certain sensible reforms—I hope to have gained consensus on them—so that members of the public can understand what sentencing is about and what individual sentences mean.

We all hear from our constituents, who tell us, ''So-and-so got off with a slap on the wrist'' or ''So-and-so was convicted of an offence, but he'll be out in a few months. It doesn't matter how serious the

offence is.'' There is a lack of faith in the criminal justice system, and much of it stems from our inability to reconnect sentencing with the public. The amendments are designed to allow anyone to navigate a route through the criminal justice system and to understand sentencing.

I am grateful that hon. Members from both sides of the Committee have signed up to the amendments, and they have done so because they want to progress the debate and to influence the Government and the judiciary. I fully accept that not all of them have signed up to every dot and comma, and most want to facilitate the debate and to help the Government achieve some reconciliation with the judiciary and Parliament on the issue of sentencing.

It is pretty obvious from recent events that the Lord Chief Justice's pronouncements about first-time burglars just before Christmas have prompted a debate. They were distorted by the media and by the reaction to them, but—if I may be slightly critical—he should have anticipated the way in which they would be interpreted. With a little more care and sensitivity, and a slightly more obvious presentation, he could have said what he did without changing the legal aspect one iota. He could have put things in such a way that people would have understood him, but fear and a lack of trust led the public and the media to react unfortunately, to put it mildly. Had he had the benefit of a wider sounding board—of others giving him sensible and rational advice before he made his pronouncements—the furore that broke out just before Christmas could have been mitigated.

In the same way, my right hon. Friend the Home Secretary—again for all the right reasons—responded to the recent terrible murders of two young ladies in Birmingham with a reflex, saying that people who carry guns should go to prison for fives years mandatorily. That was a reflex that I shared. Regardless of whether it was right or wrong, however, I hope that all of us, and perhaps even the Home Secretary, will say after further careful reflection that we should not initiate new sentencing guidelines or statute law in that way. We should perhaps take a more steady, careful and rational approach, so that we avoid some of the pitfalls that have become apparent since the Home Secretary's announcement.

Parliament is the third arm of the system. Frankly, we are just icing on the cake and part of the ritual of government, rather than a serious voice in a careful and constructive debate about sentencing. I do not say this to flatter hon. Members, but I have sat through many of our sittings, and the expertise and ability of members of this Committee alone has been a revelation. They have brought to bear experience from their constituencies, from the magistrates bench and from a lawyer's point of view. The House of Commons therefore has a part to play in the broad field of sentencing.

There is good will on all sides—within the judiciary, the Government and Parliament—to put the issue in the right context. If we share the responsibilities and talk to one another, we can come to satisfactory arrangements that accommodate every point of view

and result in more effective sentencing. Having gone through a joint process, we shall all be the wiser. Above all, the public will have faith that things will not have been done in some dusty, judicial, archaeological excavation, because of a reflex, as the result of a push by the media to respond to a particular horrendous crime, or because MPs are sitting in the House and cannot be bothered to take such issues seriously. All those stereotypes are wrong, and all three elements, including ourselves, have to take the issue seriously. It is evident from the support for the amendments in favour of a restructured Sentencing Guidelines Council that people are beginning to do so.

Sylvia Hermon (UUP, North Down)

My reservation about signing up to the hon. Gentleman's amendment is that it does not include the phrase ''representative of the community''. Does he agree that the real problem with the clause is that subsection (4) states:

''A person is not eligible to be appointed . . . unless he is a Lord Justice of Appeal, a judge of the High Court, a Circuit judge, a District Judge . . . a lay justice''?

Few women or members of ethnic communities are members of those judicial strata, so the council will not be representative of the community. That is my problem with the clause.

Graham Allen (Labour, Nottingham North)

The hon. Lady is absolutely right. I do not seek to excuse parliamentary officials or draftsmen, but one could argue that the clause was drafted almost in a different age, given the events that have taken place since the Woolf judgment and subsequently. I hope that we are all a little wiser now and can use this opportunity to bring it up to date. It was probably drafted five or six months ago, but it could have been drafted 100 years ago. It is wholly lacking in relevance to those—all of us on this Committee—who want to bring together a coalition of interest between Parliament, the judiciary and Government. The hon. Lady's point is extremely helpful.

In formal discussions with Members on the Conservative and the Liberal Democrat Front Benches and with my hon. Friend the Minister, there is immense open-mindedness as to how to proceed. Everyone wants us to get it right, so I shall not press any of the amendments to a vote. My intention is not to divide the Committee, but to create a broader unity in order to empower our Government representatives to go away and conduct any negotiations that they feel are necessary to reassure the judiciary and our parliamentary and Government colleagues that the Committee is finding a way forward on sentencing, rather than representing any vested interest or partisan group.

Amendment No. 518 is designed to make it absolutely clear that in future sentencing must pull together the three arms: judiciary, legislature and Executive. It makes it clear that the chairman of the Sentencing Guidelines Council shall be the Lord Chancellor and that it shall be his ultimate responsibility to ensure that the council works effectively. It also makes it clear—I am open to alternative formulations—that the formal deputy shall

be the Secretary of State or Home Secretary or his or her nominee and the second deputy the Chairman of the Select Committee on Home Affairs or the relevant Committee or his nominee.

All three of the vital arms will be represented on the Sentencing Guidelines Council. We want to force them, rather than using megaphone diplomacy, leaks to newspapers and pronouncements on the television, to sit down together. That is the least that we can expect of those three eminent people, who represent far broader interests. The provision is symbolic, but the symbolism is extremely important.

Amendment No. 519 is intended to allow the Chairman of the relevant House of Commons Committee to be included in subsection (3). That is to allow the House to decide whether it wants the Chairman of the Home Affairs Committee—that would be my choice—or the Chairman of the new Select Committee on the Lord Chancellor's Department to become involved. Perhaps the latter would take the role as the nominee of the Chairman of the Home Affairs Committee. That is an attempt to keep things broad, and to permit flexibility and allow the Minister to make the negotiations.

James Clappison (Conservative, Hertsmere)

Will the hon. Gentleman clarify two points? Under the clause the Lord Chief Justice would be the chairman of the council; would that still be the case under the amendment or would it be the Lord Chancellor? Secondly, under the clause the members of the council are to be appointed by the Lord Chancellor. Are the amendments intended to provide that the more-widely constituted body would also be appointed by him, so that the Lord Chancellor would choose, for example, the representatives of the business community and teachers' and victims' organisations?

Graham Allen (Labour, Nottingham North)

Perhaps I inadvertently misled the Committee. The chairman of the sentencing council should be the Lord Chief Justice under the amendments. If I said that it was the Lord Chancellor, I hope that the hon. Gentleman will forgive me.

I think that the Lord Chancellor should continue to be the person who makes appointments to the sentencing council, but amendment No. 520 specifies the groups that should be represented. The Lord Chancellor would no doubt take advice, as he currently does, on the relevant matters, and make sure that the appointee was someone representative. Perhaps there is a suggestion that someone might be intent on packing the body. I might digress here and talk about wholly elected or wholly appointed bodies; that might not be a good precedent, in the context of a discussion about the Lord Chancellor, so I shall pass quickly on.

The people suitable to represent, for example, victims' organisations, would probably be pretty obvious, and I hope that the advice given to the Lord Chancellor would be straightforward. However, if any members of the Committee think that safeguards or more clarity are needed, they should

make that contribution in debate, so that the Minister can listen.

David Cameron (Conservative, Witney)

In addition to advocating broadening the composition of the sentencing council, and ensuring that it publishes guidelines of the standard bands for each sentence—which I wholly agree with—does the hon. Gentleman agree that it is important that those bands should be debated every year on the Floor of the House? Perhaps that should happen more than once a year, because so many sentences will need to be considered. Members of Parliament, who are accountable to their electorates, could then discuss them. At the moment, all that we can do is discuss maximums and, occasionally, minimums. There would be no harm, with regard to accountability, in debating the guidelines and the sentencing bands that the council would produce.

Graham Allen (Labour, Nottingham North)

That is a helpful idea, but I warn the hon. Gentleman to be a little careful about wanting to involve the Floor of the House, instead of the appropriate Select Committees. I do not say that there should not be a debate, but both the Opposition and the Government would whip hon. Members in debates on the Floor of the House. We should at all costs avoid the House of Commons becoming involved in a bidding war about sentencing levels, in which someone argues for a standard sentence of one year for a first-time burglar, then someone else suggests two and someone else three. There will always be a more extreme case, so we must be sensitive to making matters worse. That would not preclude discussing the ideas further in a later group of amendments so that the hon. Gentleman and I stay in order. We both wish to discuss how we would best deal with those matters in the parliamentary context.

David Cameron (Conservative, Witney)

I am not suggesting that there should be a line-by-line vote through the House of Commons. However, there are many examples of debates that take place in the House. For example, we have a debate on the Public Accounts Committee, on outstanding reports or on estimates. There should be an opportunity for elected MPs with constituency cases to discuss in the House what sentences this grand body of men and women will come up with.

Eric Illsley (Labour, Barnsley Central)

Order. The guidelines on sentencing and allocation come later in the Bill. It would be better to debate those issues then. We should remain within the debate on clause 151 and the amendment.

Graham Allen (Labour, Nottingham North)

The hon. Gentleman made some sensible points that, as you say, Mr. Illsley, we shall come to. We are trying to improve the situation; making it worse is not what we are about. However, we shall come to the matter later.

Amendment No. 520 is about the composition of the sentencing council. The amendment has retained all those who are specified as being members of the sentencing council. The amendment would not throw anybody off the council; additions would be made to make the sentencing council a wider sounding-board than it would be if it was simply composed of the judiciary. Unfortunately, a closed committee of judiciary would—no doubt for all the wrong reasons—be perceived on the outside as being a

closed shop of judges advising the Lord Chancellor. There are no doubt other ways in which that can take place. However, those individuals would remain on the council but the sounding-board would be broadened. The judicial view would be leavened by the involvement of those other people that the amendment specifies. Some people perhaps should not be on the list, but I am sure that hon. Members can think of at least two or three who should be on it. Indeed, hon. Members did suggest representatives while I was drafting the amendment, for which I am grateful.

Other people may have a contribution to make, either on behalf of this place or on behalf of the Government. More pertinently, my list includes people such as a serving police officer and a serving prison governor—people who see what sentencing really means and feel that dislocation between the ordinary person and the passing of sentences. Those people may help to bring us all back together so that we can all work together to achieve an effective sentencing council.

Sylvia Hermon (UUP, North Down)

I always have a difficulty with lists such as this. People who are left out feel aggrieved and offended. I suggest that the hon. Gentleman give consideration—perhaps the Minister would also give more consideration in his reply—to saying that the sentencing council should include an additional nine, 11 or 13 lay members who, taken as a whole, are representative of the community. That would be very helpful.

Graham Allen (Labour, Nottingham North)

That is a very helpful and sensible suggestion from the hon. Lady. For example, departmental officials would automatically think that the police representative should come from the Association of Chief Police Officers. I automatically think of the Police Federation. Perhaps they should take it in turns, or perhaps we should not even specify who should represent the police.

My list is to show that the Committee feels—I hope—that the council's membership should be broader than merely the judiciary. We should not attempt, in any way, to tie the Minister's hands in any negotiations that he may need to hold after this debate in Committee in order that he can come up with perhaps 13 extra individuals.

We are saying symbolically that the sentencing council would benefit from having in its membership a serving probation officer who is used to doing pre-sentence reports daily and a representative of victims' organisations who can interject where appropriate about the way in which victims perceive a particular form of sentencing. Imagine if a representative of victims' organisations had been sitting with Lord Woolf just before Christmas on the back of the Court of Appeal case. That individual would have contributed some very sensible advice to the, by and large, sensible message that Lord Woolf finally gave in that case.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee B

Clause 151 - The Sentencing Guidelines Council

James Cran (Conservative, Beverley and Holderness)

I remind the Committee that with this we are discussing the following amendments:

No. 519, in

clause 151, page 84, line 24, at end insert

'and the chairman of the appropriate committee of the House of Commons.'.

No. 520, in

clause 151, page 84, line 25, leave out subsection (4) and insert—

'(4) The other members of the council will include at least one of each of the following—

(a) a Lord Chief Justice of Appeal;

(b) a judge of the High Court;

(c) a Circuit judge;

(d) a District judge;

(e) a District judge (Magistrates' Courts);

(f) a lay justice;

(g) a Police Officer;

(h) a Probation Officer;

(i) a Prison Governor;

(j) a representative of a Victims' Organisation;

(k) a representative of the Business Community;

(l) a teachers' representative;

(m) three lay members of the public one of whom shall be over the age of 60 and one of whom shall be under 18;

(n) a representative of exoffenders' institutions;

(o) a local government/crime and disorder partnership representative;

(p) a legal professional, alternately a barrister or solicitor;

(q) a social services representative.'.

No. 521, in

clause 151, page 84, line 31, leave out subsection (5).

No. 541, in

clause 153, page 85, line 21, leave out line 21 and insert—

'(2) The Secretary of State, Lord Chancellor or Chairman of the appropriate committee of the House of Commons must first propose to the Sentencing Advisory Panel that it prepares a report and recommendation prior to any consideration of the Council—'.

No. 638, in

clause 153, page 86, line 17, at end add—

'(ii) the appropriate committee of the House of Commons.'.

No. 687, in

clause 252, page 138, line 8, at end insert

' ''the appropriate committee of the House of Commons'' means any select committee of the House of Commons which the House of Commons may from time to time designate by resolution to be the appropriate committee for the purposes of this Act;'.

Graham Allen (Labour, Nottingham North)

I welcome you to this afternoon's sitting, Mr. Cran. I was getting on to amendment No. 520 and talking about the need to broaden the sentencing council so that it commands more widespread support, which all the various people involved in sentencing want. However, they are all mistrustful of the others involved in sentencing, and not prepared to give a little bit of their sovereignty in order to be stronger in the sentencing council.

As is often the case in Committees, a lot of discussion goes on outside Committee. One or two colleagues have expressed strong support for the concepts contained in the amendments, but have said, ''I wonder what the judiciary will make of this.'' That is why I have attempted to reassure the Lord Chief Justice by proxy through the amendments—there are other amendments later that seek to reassure the judiciary. It is incumbent on us all here, including the Minister, when he is in a position to discuss such matters with the judiciary, to give them the reassurance about their role that they require. No one that I have spoken to on the matter intends to undermine the judiciary or rob them of the final power.

The very first amendment that I moved to kick off this part of the Bill—it was probably over a week ago and seems a long time now—sought to ensure that the judges would continue to have discretion in individual cases. I was pleased to hear the reassurances that the Minister gave on that. I hope that that will help the judiciary to come to terms with the fact that we are all trying to feel our way towards something that will unite the various people involved in sentencing, and who will therefore all be a lot stronger when the sentencing proposals are finally put into the public domain. The public will feel more trust in the criminal justice system because of that process.

On amendment No. 520, I was talking about one or two of the ideas that members of the Committee have put forward about who might be on the council. It has been suggested that it include a representative of the business community or a teacher's representative. That could be important, because we have all had the same experience of talking to teachers and head teachers in our constituencies who say, ''Yes, we can spot, within three or four weeks of their going to primary school, the children who will be difficult for us, who will be underachievers at secondary school and who might eventually go into a life of crime.'' It could be extremely valuable to feed their pre-emptive views, taken well before any child comes before the courts, into the broader process.

The hon. Member for Southwark, North and Bermondsey (Simon Hughes) suggested to me the possibility of having an older person and a younger person on the council, and I have put that idea into

amendment No. 520. The perceptions of our society of the person over 60 will be different from those of the young person who is under 18. It was interesting how, almost without noticing it, hon. Members took cognisance of the fact that earlier in the morning we had a Gallery full of young people. The mere fact that they were here made us think about how they might respond on drug questions and whether there should be testing at 10, 14 or 18. The Home Secretary, the Chairman of the Select Committee on Home Affairs and the Lord Chief Justice might experience a similar, beneficial effect if a young person from a group associated with drug misuse was seated at the table when sentencing was discussed—it certainly would not do any harm for such people to take part.

A representative of an ex-offenders institution is another obvious suggestion. I bow to the expertise of my hon. Friend the Member for Bassetlaw (John Mann) in this regard, but many of us have talked to ex-offenders and ex-drug users about the best way to tackle the problem of sentencing, and some have very interesting and innovative ideas. It may be a matter not simply of a harder sentence, but of a more difficult sentence. Often, that could be prescribed by someone who had been through a similar horrendous experience and come out the other side. That would leaven the view of the professionals and experts, among whom we would probably number ourselves and certainly the judiciary. Ministers would also fall into that category.

The amendment also suggests that we include someone from the local government area or the crime and disorder partnership—I hope that Labour Members are very proud of that innovation and its beneficial impact. Partnerships have pulled agencies together and promoted multi-agency, group working. That is proving incredibly effective—certainly in my area. Perhaps sentencing is not simply a matter of deciding between a custodial and a community sentence, and such individuals might bring a mix of social service intervention, probation intervention and health intervention to the party. They might be able to bring such things to bear in terms of more effective sentencing.

The list goes on to propose a legally qualified professional and someone from social services. Each of us would have our own list, and I hope that the Minister will ponder this particular list to help him figure out whether we could do the job better.

The objective in tabling all the amendments is simple. As a nation, we have lost faith in the criminal justice system, particularly sentencing. The Committee has a tremendous opportunity to give my hon. Friend the Minister some background and some ideas that he can discuss with colleagues in the Government and with the judiciary. We could then have a credible, broad-based Sentencing Guidelines Council that reassured everyone involved in sentencing. Its decision-making process would be protracted, and I shall explain in later amendments why that should be. We should never again introduce poorly presented sentencing guidelines a few days before Christmas on the back of a single case or issue an edict about

sentencing on the back of a murder that took place only a couple of days before. We should have a protracted process that involves, networks and reassures everyone who has an interest. We need such a process above all because we must reconnect the public with sentencing. In that respect, the Committee has a fantastic opportunity, and I hope that we will seize it this afternoon.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman has done the Committee a particularly good turn by drafting his amendments and initiating the debate. When he first sought my views on his amendments, I said that they were not without difficulty. I shall return to those difficulties in a minute, but they do not mean that we should not discuss the amendments.

Of one thing I am certain: the current sentencing framework and the way in which we set out guidelines or deal with principles is deeply unsatisfactory. The hon. Gentleman is right; it does not command public respect. In particular, although the judiciary are supposed to be independent in fixing the guidelines within the parameters laid down by Parliament on maximum and sometimes minimum sentences—usually maximum—the public perception is that they are not. First, it often appears that they allow events, whether a particularly notorious case or the simple fact of prison overcrowding, to dictate sentencing policy. The concern that was expressed at the recent pronouncement of the Lord Chief Justice on burglary was that it was perceived by the public—rightly, I fear—to be entirely dictated by the crisis in prison numbers and not by any other analysis as to what was appropriate in order to reduce burglary or deter burglars.

Although judges are not supposed to be subject to political interference, it is abundantly clear that lines of communication run between Ministers and the judiciary that can be, and are, used to indicate areas of concern. That is not necessarily illegitimate, because judges would not be doing their job properly if they were not receptive to what they heard from those around them as to what was appropriate with regard to sentencing. However, there is an absence of transparency in that process. In particular, people gain the impression that the judges have dreamed something up out of thin air, albeit that is the impression that is sought to be given to them, whereas the reality is totally different.

If I say this now, I hope that it will avoid debate later. The Government's broad brush proposal for setting up the Sentencing Guidelines Council in the form that is proposed in the clause is a step forward in clarity. One only has to look in ''Archbold'' at sentencing guidelines under the broad heading of sentences of imprisonment, to see how arcane and complicated it is to cross-reference between the various dicta of judges in individual cases and the incremental development of standards that should be applied. They are sometimes mutually contradictory, always difficult to understand and frequently not properly applied by the judges themselves—probably because, in many cases, they do not understand them.

It is also noteworthy that it is clearly established that judges are not completely free and independent to disregard parameters. I shall come back to the matter later in respect of a further group of amendments, but I hope that it is appropriate to mention it here in relation to my amendments that concern Parliament. I refer again to ''Archbold'', which says, at paragraph 5–91, on the most serious example of the offence:

''The fact that the sentencer considers that Parliament has set the maximum sentence for a particular offence too low is not a ground for imposing the maximum sentence when there are relevant mitigating factors such as a plea of guilty (see R v Carroll, 16 Criminal Appeal reports 488 CA)''.

Therefore, as an issue of principle, it is clearly wrong to say that the judges are not fettered by what other people—particularly Parliament—are saying. The argument that judges must be left in their ivory towers in order to be seen to be entirely free from any pressure or interference is not tenable, even in respect of the existing state of affairs. However, I accept that it is important that the judiciary should not feel that they are being pressured into impossible positions within the ambit of their discretion.

One of the areas about which we shall need to hear from the Minister is how the Lord Chief Justice views the amendment standing in the name of the hon. Member for Nottingham, North (Mr. Allen). Some indication of how the judiciary are reacting to the proposals is needed.

I now turn to the specifics. I found myself attracted by the proposal, so I signed the amendment. We should consider whether the Sentencing Guidelines Council should be widened to include individuals other than judges. There is always a slight danger of tokenism if we go down such a route. Nevertheless, it seems perfectly practical to put together a council to come up with sentencing guidelines that consists of those who are interested in the workings of the criminal justice system. It may be thought that judges object to having to sit with others in determining those guidelines. However, at present the judiciary are fettered by the guidelines that other judges have drawn up. That is effectively what is happening, and not necessarily happening on the basis of an individual case decision. Therefore, as I have said, I am attracted by the hon. Gentleman's proposal.

We can discuss in detail—other members may wish to do so—exactly who should sit on the council. Broadly speaking, however, the hon. Gentleman identified the sorts of people who should be on it. How will those guidelines in practice, once they are issued, tie down the judiciary? That is where the issue will become more difficult. That is the area in which I foresee scope for conflict. To what extent will the judge, who wishes to recommend a sentence that may depart from the guidelines, be constrained by public pressure from within the guidelines council? We shall need explanation and guidance from the Minister about how the judiciary views that issue. The judiciary must be listened to carefully, but it should not have an overriding veto.

Ian Lucas (Labour, Wrexham)

I am following the hon. Gentleman's argument closely and I welcome his

general support for the amendment. Why does he feel that the guidelines that the new body will issue would be any different in their effect from the sentencing guidelines that the courts regularly follow?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes a very good point but, if I have interpreted correctly the direction in which we are going, sentencing guidelines, under the Government's proposals, should become a much more regular tool for providing a structure within which sentencing should take place. However, the judiciary must use the guidelines properly, and the Lord Chief Justice and the council must operate properly. That is my interpretation of the new sentencing council. I accept that the judiciary might fail to do what is intended.

I must say that, in my slight experience, there are huge areas of criminal law within the scope of sentencing guidelines that remain extremely woolly. If current sentencing guidelines were the determining factor on sentences, ''Archbold'' would not be worded as it is. ''Archbold'' refers people round the houses to determine what the correct sentence should be. Some of the cases used are 30 or 40 years old. The new guidelines should all be much more apparent and clear.

However, the hon. Gentleman is quite right—it may turn out not to be the case, and the Minister will doubtless enlighten us on this in due course. However, I had assumed that, in putting the guidelines council in this form in this statute, it was the Government's intention that the guidelines council would in future be a much more high-profile and prominent body for laying down sentencing guidelines. If I am wrong, the Minister can either interrupt me or deal with the matter later.

Graham Allen (Labour, Nottingham North)

Obviously, no one can speak for the Minister, but the hon. Member for Beaconsfield (Mr. Grieve) may like to consider that the guidelines are part of a wider process, and that part of the Government's intention is to involve the public. That would take us to a qualitatively different dimension, the intention being that the public understand sentencing—probably for the first time.

Dominic Grieve (Conservative, Beaconsfield)

I agree. I return to the point that I was making, which might technically be possible if the models that the Minister or the hon. Member for Nottingham, North are proposing are adopted, although I am bound to say that I find that the latter's model gives me greater reassurance that that will happen. That is one of the reasons why I was attracted to it.

I do not intend to say more at this stage, but I shall have the opportunity to speak, on a later group of amendments, about the level of parliamentary involvement. The amendments could be hitched to what the hon. Gentleman proposes; they could equally well be hitched to what the Minister now proposes. They raise a discrete issue, so I shall not develop the argument now.

One of the public's complaints is that they have a sense of powerlessness when trying to make their views known on sentence tariffs or guidelines with which they disagree. They are right to make their views

known, because the judiciary are effectively isolated—deliberately so—from such pressure. The pressure lands instead on the Minister, who says that there is nothing that he can do about it—unless the tariff for the offence is changed. That is how we got into the business of mandatory five-year sentences for gun possession—a sentence that had to be watered down in the light of reality, once it was appreciated that exceptions have to be made. That is a classic example of how Ministers have had to respond, while passing the buck to the judges.

If there was a level of parliamentary involvement, as I shall propose at a later stage, there would be an immediate channel to enable people to say that they did not like things as they stood. Politicians will not be able to duck that issue. However, I shall return to that point in due course. In the meantime, I thank the hon. Member for Nottingham, North for raising the issue, and I look forward to hearing the views of other members of the Committee.

John Mann (Labour, Bassetlaw)

I rise briefly to support the principle that we are discussing, assisted by the amendment moved by my hon. Friend the Member for Nottingham, North. Should any journalist be present, I should point out that I was recently mistaken for him by a newspaper and that many of his proposals were attributed to me. I did not, of course, deny it.

I want to speak about the principle rather than specifics, because it is clearly a probing amendment. We rightly heard from the hon. Member for Beaconsfield about the public's perceptions and complaints. Another interesting perspective is shared in my area by the police—and by criminals. It is about the absurdity of some of the sentences that are passed on drug offenders. Indeed, I pointed out to the Minister that such absurdities had crept into the Bill in a number of places; for instance, fines are proposed as a sanction for not fulfilling the criteria of community sentences. The absurdity is that addicted heroin offenders, who are responsible for 95 per cent. of all crime in the western part of my constituency, will, when fined, go out and steal more to fund their addiction. They tend not to have reserves of cash.

Criminals point to that absurdity. Some did so vocally in my public inquiry, and the police accorded and made exactly the same point at every level, from local constable to chief constable. Therefore it is crucial that we have a sentencing system that is thoughtful and responsive and listens to the community.

I would also observe that the Home Office and the legal profession have a long obsession for determining what is appropriate. I note that my hon. Friend the Member for Nottingham, North goes some way to add to that by incorporating the probation service into the clause. The amendment proposes involving the probation service in making judgments on what sentence is appropriate for a drugs offender. The probation service does have expertise, training and experience in these matters, but in a general, not a specialist way. How will whoever is appointed to the

guidelines council go about consulting the wider community? I doubt that putting a drug-addicted repeat offender from my area on such a body would contribute greatly to the debate.

However, if we discuss the issues with such people we may find that they are in accord with the police that there is a need for stricter sentencing. I reached that surprising conclusion after discussions with many of my constituents: often drugs offenders want to be sentenced and sent to prison because it gives them a structured form of treatment and detoxing, albeit one that is expensive for the state. Some will admit offences that they did not commit in the hope of receiving a prison sentence rather than a fine. Consultation of that kind is critical.

My final point is that there is a very good case for introducing drugs courts to deal with such offences. They would be dealt with by experts rather than be thrown into the general legal process. We will leave that to the consideration of the Minister and the Department.

David Heath (Liberal Democrat, Somerton and Frome)

I support the thrust of the amendments. We are not discussing their details; we are discussing the principles enshrined in them. The hon. Member for Nottingham, North is right in two respects: first, many people feel a disconnection between what they consider to be right and effective and the sentencing that they see reported in the press. We must deal with that sense of disconnection. The second principle in which the hon. Gentleman is absolutely right is that a Sentencing Guidelines Council, however it may be constituted, must take a long-term and reasoned view of what is appropriate. It should, as far as possible, resist the day-to-day fashion of the screaming headlines.

It would be easy to slate the tabloid editors as being the problem. However, although it is true that they partly lead public opinion, they also reflect it. We must understand that. The difficulty comes when the Executive find themselves interfering with the judiciary, as they undoubtedly do directly and indirectly, as a result of screaming headlines that may or may not be based on a reasoned approach.

At the moment, we have both a Prime Minister and a Home Secretary who make ex cathedra statements about such matters. That has an effect. I could go into one of my regular diatribes about the position of the Lord Chancellor, but I am sure that you, Mr. Cran, would not wish me to do so. However, we have the anomalous position of an individual who is a member of the Executive, the legislature and the judiciary simultaneously. Of course that means that the Executive have an effect on the judiciary, irrespective of claims of independence—the head of our judicial processes sits in the Cabinet, takes judicial decisions there, and assumes Cabinet responsibility.

I thought for a moment, when the hon. Member for Nottingham, North was introducing his comments, that he had finally found a situation in which that anomaly made sense; he seemed to have the Lord Chancellor chairing the council—one person embodying the three branches: legislature, Executive

and judiciary—but he corrected himself and restored the position, quite properly, to the Lord Chief Justice.

I was conscious, when the remarks of the Lord Chief Justice were announced at Christmas, that one of the first people in my constituency to write to me on the subject was a serving police officer, a chief superintendent. He wanted me to know how much he disagreed with what he believed had been said. He had gathered what had been said via the newspapers and it had not been accurately reported. Nevertheless, he had real concerns. We often ignore the views of the police on such issues, and we are unwise to do so; they are part of the process. However, so are a lot of other people. The benefit of what the hon. Gentleman has proposed is that it extends membership beyond the very narrow field of the judiciary to a wider circle.

I appreciate the arguments in the other direction. I understand why the judiciary feel that their independence might be sullied by contact with the outside world, but I do not accept that that is the case. For one moment, I misinterpreted the hon. Member for Beaconsfield and thought that he was saying that the guidelines issued by a Sentencing Guidelines Council would be less acceptable to judges if they were contaminated with the views of lay people. I do not think, having heard his further comments, that he did say that. That would be an unacceptable position. Of course, we accept and respect the expertise of such people. They have a leading role to play and we must not fetter the discretion of the judiciary in dealing with individual cases. In terms of the broad guidelines, as the hon. Member for Nottingham, North said, the community has a role to play.

There is a danger of tokenism—people might be appointed as ''the community'', ''the outside world'' or ''the public''. We have all witnessed situations in which that has happened—the people's peers were an example of how not to produce representatives of the people. It happens in users councils and in quangos; people are appointed to positions in order to represent a community of which they have scant knowledge, and with which they have little connection. We must be careful how we appoint people.

The hon. Gentleman's suggestion as to the approximate spread is right. There are interest groups and individuals who have an informed opinion to bring to the table. One such group is Members of this House; we are representatives of Everyman. We may do our job imperfectly because, as we all know, the House is not fully representative in many ways. However, it is the best that is on offer. It is important for Parliament to be involved, and the hon. Gentleman was right to say that we should not take such issues from the Floor of the House, where parliamentarians are subject to the same pressures as those that I described for the Executive.

It is right that Parliament should, in a considered way, have a voice. Like other members of the Committee, I find it frustrating when people write to me about judicial matters and they simply cannot understand why I can do nothing to affect outcomes that they see as grossly unjust. Of course, it is not for

us to interfere with judicial discretion, but this is one area in which we can set the parameters within which the judicial professions work, in a way that helps everyone.

To return to my original point, the amendments are very valuable, and I hope that the Minister will give them due consideration. I do not expect him to accept them in the way that he did the previous group, but I hope that they will give him a basis on which to talk to members of the judiciary. They may have serious qualms about such proposals, but they may find that there is a formula that is acceptable to them and which reassures the public and improves the system.

Sylvia Hermon (UUP, North Down)

I am very struck by the fact that we have concentrated exclusively on the composition of the Sentencing Guidelines Council, particularly given that clause 152 deals with the Sentencing Advisory Panel. The council and the panel will have to work in conjunction, so it would be useful and informative to know the panel's membership before we reach conclusions about the council.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Lady is right: the two will obviously need to work in conjunction. I have an innate suspicion of anything that is constituted by the Lord Chancellor—that is just a problem that I have, although the Minister will no doubt allay my suspicions. However, the hon. Lady is right. We shall come to clause 152 later, but the Minister might help us at this stage by explaining what the connections between the two bodies will be and how the panel is and will be constituted. However, that is probably enough from me, and hon. Members will want to hear the Minister.

Vera Baird (Labour, Redcar)

I have signed amendment No. 518 and I compliment my hon. Friend the Member for Nottingham, North on raising the important issue of reconnecting the public with the sentencing process. However, I do not think that the amendment hits the nail on the head.

About 90 per cent. of sentences are given out by the magistrates court, a large proportion of whose members are drawn from the public, although there are some professionals, such as the hon. Member for Woking (Mr. Malins). Therefore the public and, indeed, the local public, who have a great understanding of local issues and of what constitutes a local menace, already have a significant input into sentencing.

Of course, magistrates courts operate within guidelines, but those are not solely or, indeed, predominantly, laid down by the Court of Appeal. Nor does the Court of Appeal get that much opportunity to review what happens in the magistrates courts, because sentencing appeals go to the Crown court. Furthermore, there are Magistrates Association and magistrates court committee guidelines to assist the courts, so there is already an element of public involvement.

My second point—I am simply airing a few thoughts, and there are just a few, because I agree with the principle, although I am not sure about the mechanism—is that the public's experience of

sentencing is quite fragmentary and episodic. The hon. Member for Witney (Mr. Cameron) referred a day or two ago to a case in which a dangerous driver killed someone. The sentence was perhaps too short in the first place, and the hon. Gentleman's argument was that it was certainly too short by the time that the Court of Appeal had dealt with it. Deaths are, of course, extremely emotive and people comment that one person's death is worth more than another's because of the gravity of the sentence that followed, whereas the criminality of the perpetrator should determine the sentence. The issue of valuing a life inevitably comes into it and that life is just as lost as if the person had been murdered. That sort of episodic view of sentencing gives the public a false impression.

A survey into public attitudes was recently carried out, in which people were asked about rape, a subject in which I take a strong interest. Some 70 per cent. of them thought that, in the main, rapists did not receive custodial sentences. Of course, 90 per cent. of rapists or more actually receive custodial sentences, and the public's view was totally wrong. The thrust of the rest of the survey was that the public systematically underestimate the gravity of sentencing.

There are wider misunderstandings. A while ago, I asked my hon. Friend the Minister a written question, to which he sent me a perfect reply. There was a great mystery because some Home Office research had indicated that, in the public's view, crime was going up, when it was in fact going down. I asked what the Home Office could do to redress the balance. There is no doubt that that lack of communication breeds distrust. It is essential that the public should trust in the criminal justice system because if they suffer from crime, they must believe that the state is dealing with it properly and looking after them. The Sentencing Advisory Panel, which has been established for three or four years now, consists mainly of academics and practitioners. I know two people on the panel, and they do the most interesting things. For example, they recently considered the issue of rape sentencing.

The panel came across the conundrum that sentencing for rape by a stranger is higher than sentencing for rape by someone who is known to the complainant. They considered why that was and whether it should be the case. They carried out some research using a questionnaire to ascertain what the public thought about the relative gravity and relative damage done by rape by a stranger and rape by someone known to the complainant. That was an interesting piece of work, which obtained not only the public's views but the public's reasons for holding those views, in a systematic way that goes way beyond the input of public views that would result from having an assortment of figures on the Sentencing Guidelines Council. The conclusions of the panel were fed through to the Court of Appeal, which accepted them and concluded that it was possible that rape by someone known to a woman could be more harmful than rape by a stranger because it might call into question not only male behaviour but the woman's judgment for knowing the man in the first place.

That issue was bottomed out because the panel consulted the public widely. That is an important job, which clause 152 says that the panel will carry on doing. As I understand the system, whenever the guidelines council considers guidelines, it must first refer the issue to the panel, which will do its work after which the guidelines council will consider its proposals with great care. The process will be undertaken carefully, even if it is confined to judges.

I agree that we must reconnect the public, but my fear about widening the process beyond judges is that judges are not merely dipping episodically into sentencing; they do it day in, day out. Although a person may have a view about a particular crime, their view is removed from the context of many other similar crimes. Judges will sentence for, perhaps, 200 rapes in the course of their career and will have seen the relative gravity of cases. They will have watched the trial, assessed the defendant during the trial and got the measure of him because that is part of their job. They will have assessed the complainant, the evidence and the impact of the crime on society, so they will be in pole position—closely involved and very experienced—to evaluate the sentence. I fear that if we too readily disregard or discard that expertise as the thrust of how sentencing should be done, two things will follow. First, we shall miss it out and sentence by some sort of popular acclaim, however careful we try to be. Secondly, the guidelines will not have the credibility that they should have with the judiciary, because the judiciary will regard them as having come from a mixed source that is not pure, through and through, with the training that they have had.

If the concern of the judges is that they would not regard the guidelines as credible if the public were involved with them, that is not sufficient; the public are part of society, and the judges must change. However, I am sure that they express such reservations because they fear that their highly-trained skills will be too readily cast aside in the interests of pleasing the public.

My tendency would be to suggest some sort of parliamentary route for sanctioning the guidelines of the council, given that the public are assured involvement through their input to the Sentencing Advisory Panel. I commend my hon. Friend the Member for Nottingham, North for raising the issue.

Ian Lucas (Labour, Wrexham)

Is it not the case that the public representatives on the sentencing panel should be contributing by expressing the views of the public as to the correct general parameters for a sentence for a particular type of offence? No one is suggesting that, within the parameters, individual judges should be at all restricted in respect of individual cases. In order to retain the confidence of the public, which has been undermined in the past, it is necessary for public representatives to be involved in setting the parameters.

Vera Baird (Labour, Redcar)

I appreciate what my hon. Friend says. My only fear is that the judiciary, who are heavily outnumbered in the dramatis personae that has been set out, will fear that their expertise is being too readily

discarded in the rush to please the public, and that the guidelines will not, therefore, have the credibility that they ought to have. That is my concern, and I will repeat my point that a much more systematic way of involving the public's views in sentencing is already in place through the Sentencing Advisory Panel. It is going to continue and it will have to be consulted.

Paul Stinchcombe (Labour, Wellingborough)

I want to say a few words about why I support the amendment, even though I do not disregard the expertise of the judiciary in sentencing. I have in mind the fact that three former colleagues, who were members of my chambers, are now High Court judges. Two are Lord Justices of Appeal and the other was pupil master to the Lord Chief's son. They have massive expertise in sentencing, for all of the reasons stated by my hon. and learned Friend the Member for Redcar. However, that expertise would not be diminished if there were a broader constituency of minds in the development of sentencing guidelines. Not only would the judiciary be well informed by the consultation and participation of a broader constituency of minds, but those with whom they were consulting—such as members of the probation service and prison governors—would be better informed and would have greater confidence in the sentencing if they listened to the reasoning and the experience of the judiciary.

If the public are to have confidence in sentencing, they have to be involved somehow. Although this might not be the perfect device for it, it is a device. In progressing the matter, we need not disregard the expertise of the judges; we should simply ensure that they are switched in to the wider concerns of the public while the guidelines are being developed.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes an important point. Some of the people included in the list in the amendment are not really members of the public; as the hon. and learned Member for Redcar (Vera Baird) said, they could be experts in the field of sentencing without being members of the judiciary. The objection to the presence of judges does not strike me as being particularly tenable. The other statement about the public is that unless they have decided to make themselves experts, it could be said that they do not have the expertise to make the decision, but could contribute to the discussion. That is something that perhaps we could take further.

Paul Stinchcombe (Labour, Wellingborough)

Indeed; the hon. Gentleman has made some important points. Paragraph (m) of amendment No. 520 includes refers to

''three lay members of the public''.

They would be qualitatively different from the others, most of whom have a role in the criminal justice system. It is not a perfect solution, but it would make a valuable contribution. I hope that the ideas that the amendment has generated will give the Home Office reason to look at a mechanism that may be better than this, but that will certainly be an improvement on the existing suggestion, which is far too exclusive in that it restricts the entirety of sentencing policy to the judiciary.

Graham Allen (Labour, Nottingham North)

It may be helpful if I pick up on a couple of the points that have been made before the Minister winds up.

I omitted to speak to amendment No. 541, which is pertinent to the debate. It would reassure people about the process. Nothing could be worse than people arriving one morning at the sentencing council and having a show of hands on sentencing burglars. It would be disastrous. The amendment would show it to be a carefully considered and protracted process. My hon. Friend the Member for Wellingborough (Mr. Stinchcombe) referred to the Sentencing Advisory Panel. I have no intention of changing that—it does an excellent job. The reports of academics and various other people at the technical or boffin end of sentencing are carefully considered.

Amendment No. 541 makes a point that I hope the Minister will consider. It proposes that the Secretary of State, the Lord Chief Justice or the relevant Select Committee Chairman

''must first propose to the Sentencing Advisory Panel that it prepares a report''.

It would mean that no one could kick-start the system by jumping the council into a new debate about a particular sentencing problem, rush it through and use a majority to force his opinion on an unwilling sentencing council.

May I also point out an error in my drafting of amendment No. 541. Yet again, I refer to the Lord Chief Justice as the Lord Chancellor. I do not know whether they would be flattered or insulted. I meant the amendment to refer to the Lord Chief Justice.

Once the panel has considered a report, it would go to the council. The council must proceed by consent. It must have an open, long-term debate, hear all the voices, and come to a conclusion. I cannot imagine that the council would ever vote or try to create a faction or majority. It must proceed by appropriate consensus and debate. To reassure my hon. and learned Friend the Member for Redcar, I absolutely do not wish this to be seen in any way as disregarding judicial expertise. On the contrary, I hope that it will be complementary and help the judiciary in their difficult job. If it is not, we need to draft it in such a way that the intention is clear.

I am not sure whether I am allowed to use props in Committee, but one of Friday's tabloid headlines reads ''Blunkett and Woolf at war over sentencing''. That does no one anywhere in the criminal justice system any good—whether they are an offender, a victim, the Lord Chief Justice or the Home Secretary. I have dealt with the Lord Chief Justice and the Home Secretary, and I have the greatest respect for them. I know that they and the Select Committee Chairman simply want to do the best for the criminal justice system and those involved in it. It is absolute nonsense to have people pitted against one another, although there will, of course, be disagreements, and we need a framework in which to overcome them. No one is helped by the continual personalisation and trivialisation of genuine debates that need to be had, and I am sure that all those involved, including members of the Committee, are people of good will.

We are feeling our way forward in search of a way of reconciling different views so that we can all work together and create a sentencing framework that works for everyone. I thank the Minister—and you, Mr. Cran, for your forbearance.

Hilary Benn (Labour, Leeds Central)

Good afternoon, Mr. Cran.

This has been an excellent debate, and like other hon. Members, I thank my hon. Friend the Member for Nottingham, North for initiating it. We have laid bare all the considerations that will need—I say ''will need'' deliberately, for reasons to which I shall come later—to be borne in mind as we try to get the new arrangements and the role and composition of Sentencing Guidelines Council right.

I was struck by a phrase that my hon. Friend used in his opening remarks. He said that we needed a steady, careful and rational way of dealing with the issues, and I wholeheartedly concur. It is clear from our discussion that we are trying to create a process that is clear, workable and widely understood, particularly so that public confidence, which many hon. Members have stressed, is enhanced and assured. We are trying to create a process that assists sentencers in applying guidelines to the offenders before them, and—this has been the most important aspect of the debate—provides for consistency of purpose and application, while avoiding excessive prescription.

A system that does all that would certainly guard against the risks that have been mentioned. The hon. Member for Beaconsfield, for example, referred to people being swayed by events, while my hon. and learned Friend the Member for Redcar mentioned the rush to please the public. It would also help to address the issue of complexity, to which the hon. Gentleman referred when he quoted from ''Archbold''. That would assist sentencers with their job.

In essence, that is what we are grappling with. We are trying to find the right balance, the right safeguards, the time and opportunity to contemplate what the guidelines should look like, and the right mechanisms for consulting the broader public. In that respect, my hon. and learned Friend helpfully drew our attention to the Sentencing Advisory Panel, which carries out a lot of research, including public consultation, as part of its responsibilities. As will be made clear in the clauses to which we shall come shortly, the panel will continue to play an important part in relation to the arrangements in the Bill.

The Sentencing Guidelines Council—everyone agrees that it is a good thing and that this is the right time to create it—will clearly be the linchpin of the mechanism that we must construct together. It is clear that Parliament must set the policy, but it is equally clear that the court must hand down the sentence in individual cases. Of course, we must safeguard proper judicial independence. In saying that the Sentencing Guidelines Council will be the linchpin of the system, we should recognise that such guidelines as it is proposed that the council produce

will be close to the decision-making process in individual cases. We should reflect on that and bear such matters in mind when deciding on the checks and balances, and on the opportunities to be given to everyone who has a legitimate role to play in the process to understand where that balance should finally be held.

It was for that reason that John Halliday originally proposed in his report that the council should consist of sentencers from all tiers of the criminal courts, including, of course, lay justices. That was the point that the hon. Member for North Down (Lady Hermon) made in talking about the gender balance within the group listed. I think that about 50 per cent. of magistrates are now women, but I accept her argument in relation to the other people listed in subsection (4) as it is currently drafted.

Setting guidelines to ensure that sentences are consistent in approach is currently done by the Court of Appeal and the Magistrates Association, working with the district judges and the Justices' Clerks Society. The aim is for the council to continue and develop that work. In so doing it will undoubtedly acquire a higher profile. The hon. Member for Beaconsfield asked a question about that. At the same time, we believe, as has been evident from the debate, that Parliament has a legitimate role in considering how the laws that it has passed are implemented. That is why the Government are committed to involving Parliament more formally in the process of creating sentencing guidelines than in the past. Under the clauses, Parliament will have an opportunity to contribute to the development of those guidelines. Our thinking thus far has been that that should be through a Committee such as the Select Committee on Home Affairs, which has extensive powers to examine and influence the decisions of the council in an open way, while leaving final decisions to the council itself. The council will also report annually to Parliament. If a parliamentary Committee wanted to consider the issues raised by the report, it would be able to invite attendance from the council.

There are also issues of practicality to consider. There are more than 2,000 offences for which guidelines need to be considered. In practice Parliament is likely to have a significant interest in relatively few of those. We do not wish to introduce a mechanism that creates an expectation that Parliament wishes to pore over all the guidelines in great detail, when we know that it will not. We must also bear in mind that issue of practicality.

Having said all that and having recognised that the final decision on the content of the guidelines should be left to the Sentencing Guidelines Council, I tell the Committee, in response to today's excellent debate, to the points raised by the amendments and to the discussion in the last few weeks, that we continue to reflect on the composition of the council because we need to address that issue. I have heard all the arguments about the need to get the balance right. We need to reflect further on issues to do with the composition of the council, and the means of

parliamentary scrutiny. We should therefore like to return to those issues on Report.

Sylvia Hermon (UUP, North Down)

While the Minister is reflecting on the views that have been expressed, would he also consider again the example and the lesson from Northern Ireland, where there was a loss of confidence in the judicial system, whereby under the Justice (Northern Ireland) Act 2002 the Judicial Appointments Commission was set up? I appreciate that that is a different body, but its composition is crucial to building back public confidence, a matter that the hon. Members for Wrexham (Ian Lucas) and for Nottingham, North raised. There are 13 members: the chairman is the Lord Chief Justice, five persons are members of the judiciary, one is appointed from the Bar Council for Northern Ireland, another is a solicitor appointed by the Law Society, and there are five lay members who are representative of the community. In Northern Ireland, women and ethnic minorities are not well represented in the judiciary. Although the Minister has spoken about women as lay magistrates, I heard nothing about ethnic minorities being represented in the judiciary. It is important that their voice be heard.

James Cran (Conservative, Beverley and Holderness)

I did not interrupt, but that was more like a mini-speech than an intervention.

Hilary Benn (Labour, Leeds Central)

I will certainly reflect on the points that the hon. Lady made. She reminded us in an earlier debate of the changes to judicial appointments in Northern Ireland and of the particular circumstances that have given the issue of confidence in the process even more salience and political force than is the case outside Northern Ireland. She makes a good point. I believe the latest figure is that 5.7 per cent. of magistrates are drawn from the ethnic minorities. We will shortly discover from the census the extent to which that reflects our society. It is obviously an important point.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister is being very helpful in his response. Will he consider that it is essential to involve Parliament earlier than subsection (8) would allow? Under it, the Secretary of State and the Lord Chancellor would be consultees, and that does not adequately reflect the case that the hon. Member for Nottingham, North made.

Sitting suspended for a Division in the House.

On resuming—

Hilary Benn (Labour, Leeds Central)

I shall now deal briefly with amendments Nos. 541 and 538. In addressing amendment No. 541, I shall respond to the point that the hon. Member for Somerton and Frome (Mr. Heath) raised in his intervention. Amendment No. 541 would remove the council's power to determine the priorities of issues that require guidelines. Ministers and/or the Chairman of the Select Committee on Home Affairs would be given the power to direct the Sentencing Advisory Panel to provide advice, which the council would then be obliged to consider.

The council is responsible for sentencing guidelines, so it seems appropriate that it should determine the priorities for the panel. However, we must recognise that, under the Bill, both the Secretary of State and the panel can indicate to the council that they feel that there is an issue that must be dealt with. Moreover, the panel, when that process begins, must have an opportunity to be notified in order to research, consult and express a view.

The Secretary of State's present power to propose to the council that a guideline be considered is sufficient to take account of Parliament's concerns. That was the point that the hon. Gentleman raised. However, in practice, the council will be aware of points that others have raised. For example, if the Home Affairs Committee were to identify something, I am sure that the council would look at it. We shall undoubtedly reflect on Report on the mechanism for parliamentary scrutiny of the council's work.

As regards amendment No. 538, the Bill already contains provisions for the council to make an annual report to Ministers on the exercise of its functions and for that report to be laid before Parliament. I would expect the council to take the initiative in producing useful information for a range of people, including the public. I would also expect that information to be easily accessible. The annual report may form a part of that information. However, I am not persuaded that to place a statutory obligation on the council as to the way in which it produces information for the public would be beneficial. Therefore I request that amendment No. 538 be withdrawn.

Graham Allen (Labour, Nottingham North)

I was just looking for amendment No. 538 in the group of amendments. Since I did not table it, I am happy to withdraw it. I see that it should be amendment No. 638.

I thank the Minister for his comments and for his positive attitude towards the way in which all Members have dealt with the matter. That is almost unique in my experience, and the Minister is to be commended for his open-mindedness in agreeing to consider further the points raised. To an extent, our job finishes in Committee. However, the Minister has the difficult job of discussing the nitty-gritty with the Home Secretary and the Lord Chief Justice. I wish the Minister well. Both the Home Secretary and the Lord Chief Justice are people of good will who want sentencing to command public support. I am sure that however difficult the negotiations are, he will be working with people who want the process to be a success.

We shall come to some subsidiary questions, but we have dealt with the main thrust of what we attempted to do today. I thank the Minister for his positive response to the amendments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 151 ordered to stand part of the Bill.

Clause 152 ordered to stand part of the Bill.

Clause 153 - Guidelines relating to sentencing and allocation

Graham Allen (Labour, Nottingham North)

I beg to move amendment No. 539, in

clause 153 page 85, line 20, at end insert—

'(1A) The Sentencing Guidelines Council shall issue a list of Standard Band sentences for offences in particular categories requested by the Home Secretary or Lord Chief Justice. This list shall be available to the public in the Annual Report of the Council and in whatever other formats are agreed by the Council. The Standard sentence shall be applied in the context of guidelines issued by the Council and with full judicial discretion which, where exercised, shall be explained in writing.'.

The amendment relates to the specific duties and expectations that it is right to place on the sentencing council. Considering the matter from the public's perspective, clarity is helpful, wherever possible, but clarity can be present only on the basis that we know, having laid down a guideline or sentencing band, that there will be judicial discretion. In that way, the judiciary will interpret guidelines or tariffs in the light of the evidence of any particular case.

The hon. Member for North Down made a pertinent point about incorporating judicial independence and discretion in the Bill. The Minister replied fully to her remark, but why not include that in the Bill? That would assist the Minister incredibly in his dealings with the judiciary when discussing various possibilities regarding the sentencing council.

The Minister will know better than anyone the work programme that must be gathering in the minds of his officials in connection with setting up the sentencing council. All I ask is that, when the sentencing council starts its work, it should pick out some key offences that resonate with the public, whether it be burglary or other offences, so that the public understand that the sentencing council is working on their behalf in attempting to explain how sentencing works. That will be a matter for the discretion of people on the sentencing council. Explaining why certain standard tariffs or bands are applicable in certain cases will assist public understanding immensely.

My hon. and learned Friend the Member for Redcar eloquently described the public's misperceptions about current sentences and how, for example, although crime has fallen, the public's perception is that it has risen. I do not want to start a debate about the police service, but the problem is partly that people do not feel reassured. If they felt reassured, they would believe that crime was falling. Equally, on sentencing, if the public understood why certain sentences were given for certain offences, they would feel more at ease and would not fall prey to some of the wilder exaggerations in the tabloid press.

Amendment No. 539 also requires the list of key offences to be made available to the public in the sentencing council's annual report, as well as in whatever other formats are agreed by the council. I was assisted by the Clerk in drafting the amendment. I know that the Minister has a small easy-to-read document produced by the Home Office, which explains how the criminal justice system works. I have used that extensively. Indeed—I must be careful

not to get into trouble with the Serjeant-at-Arms—I have sent copies to many constituents who had questions about policing and the criminal justice system. That is exactly the sort of thing that we should be doing. Over and above the things that my right hon. and learned Friend the Member for Redcar mentioned, such as connections with magistrates and the good things that we will be doing on the sentencing council, we should involve people personally and directly in their criminal justice system.

I hope that my hon. Friend the Minister will wave one of those copies at the appropriate moment, but what is done nationally could easily be done locally. For a small amount of money, many Committee members produce annual reports that they sent to all households in their constituency. To send a report about the criminal justice system to every household in my city of Nottingham would cost about £12,000—a fleabite in terms of the criminal justice budget in the area. People would have something tangible that would explain the criminal justice system and how the courts work, that would tell them how they can contact victim support, how better to contact the police, how to complain and so on. That is one way of reuniting the criminal justice system with the public.

Sylvia Hermon (UUP, North Down)

I want to add to the hon. Gentleman's suggestion by recommending that instead of sending the report directly to the public, it should be sent to all main and local newspapers. It is the newspapers that so often misinform the public. If they published that report, it would be helpful—and it would save money.

Graham Allen (Labour, Nottingham North)

The hon. Lady makes an intriguing suggestion. Some newspapers abuse their often exclusive access to the courts. Members of the public do not sit in the gallery in vast numbers, and newspapers can abuse the system because the public do not understand how sentencing works and people cannot dismiss their reports. However, those who know a little more about the process will understand how complicated sentencing is and how, in particular cases, a judge had to take account of mitigating or aggravating circumstances. The newspapers would find it a little more difficult to get away with some of their more outlandish claims if the public were wired more effectively into the criminal justice system.

The amendment states:

''The Standard sentence shall be applied in the context of guidelines issued by the Council and with full judicial discretion''.

The framework is clear. Starting with a clear band or even a defined level for each offence, guidelines would make the system more elaborate and comprehensible to the judiciary as well as to the public. On top of that, as always, there would be full judicial discretion; judges could use their brains, judgment and experience to come up with a specific sentence for a particular offence.

That is how the process should work. The process should involve us all, including the public, and it should command widespread public support. There will be further amendments to later parts of the Bill, but I have said that when judicial discretion is used, it

should be explained in writing, not least for the victim and the offender. That would also benefit those reading sentencing records on future occasions.

I hope that the amendment will make a useful addition to the Minister's armoury. As well as judicial consent and the consent of the Executive, we need the consent of the public. Above all, that requires a degree of clarity, so that a half-way intelligent layman can comprehend the sentencing process.

Dominic Grieve (Conservative, Beaconsfield)

The amendment, to which I did not subscribe my name, is extremely interesting. I did not sign it because I was not sure that it was going in the direction that I was seeking with the amendments that we will consider in the next group.

That does not diminish my interest in the amendment. What I found most interesting, although I do not have an answer for it, is whether it is possible to split banding from guidelines as the hon. Gentleman envisages. It is of particular interest to me because I was struck by the thought that Parliament should have a greater role in setting bands but not in setting the guidelines. I think that the hon. Gentleman understands the distinction. I came to the conclusion that it might be very difficult to make that distinction. Therefore I ceased trying and came up with the next group of amendments.

I will be particularly interested to hear the Minister's view of such a possibility. I shall enlarge on what I see as the problem, but I will be only too happy if somebody can persuade me that I have got it wrong. Banding would be a broad approach, saying that particular offences should attract a particular sentence within the maximums or minimums set by Parliament. Perhaps banding does not take into account other guideline considerations such as mitigating circumstances, the age of the offender and the number of his previous convictions. There will simply be a straightforward statement in order to set a band. Banding will become meaningless unless it is accompanied by the more detailed guidelines that set the criteria by which we either raise or diminish sentences.

I would be only too happy to be persuaded that I am wrong and that it is possible to do such splitting. It would facilitate my task in trying to get Parliament to play a role, which is the aim behind the next group of amendments. If Committee members or the Minister have a view on that, I would be only too happy to hear it.

Paul Stinchcombe (Labour, Wellingborough)

Can the hon. Gentleman help to set the context for this part of the debate by explaining from his barristerial experience what happens now? My understanding, and I am not a practitioner in criminal law, is that judges are routinely issued with copies of ''Thomas on Sentencing'', which gives the tariff sentence for an offence, and that they take into account exacerbating or mitigating circumstances that might increase or reduce the sentence.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman is right, but the tariff is fairly meaningless unless viewed alongside the criteria that must be applied to it. It may be possible to split the two so that one sets the tariff and the other the mitigating or exacerbating circumstances.

However, there is a certain artificiality about that, and I worry that it will also send out a very mixed message. One of the Committee's concerns is to increase the transparency of the legal system in order to increase public trust in it. The public may find such splitting mysterious and difficult to understand. I may be wrong, but I found it difficult to understand how the two criteria could be distinguished.

Moreover, two bodies doing two different jobs could create a serious problem. It was suggested to me that Parliament could set the bands and leave the judges to set the guidelines. There are, however, considerable problems associated with such a suggestion. I accept that this is slightly different; it is about publicising the banding in a particular fashion separately from the guidelines. However, some of the same problems might apply.

Paul Stinchcombe (Labour, Wellingborough)

Another difficulty would be the breadth of the bands. For example, for rape it would have to be from five years to life.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman is right. I have no difficulty in agreeing with him. It is part of what I call the potential meaninglessness of the bands on their own. Once we start trying to narrow the bands, we go into the area of guidelines. I find the distinction difficult to make. Therefore, sympathetic as I am to the aim of the hon. Member for Nottingham, North—indeed I should like to be persuaded by it for my own use—I have concluded that it cannot reasonably be done. I shall be interested to hear the Minister's response.

David Heath (Liberal Democrat, Somerton and Frome)

Again, this is an area in which the principle espoused by the hon. Member for Nottingham, North should be considered. I am less concerned about the detail because I do not expect the Minister to accept the amendment. However, I hope that he will consider the thought processes behind it. We would all agree that transparency aids comprehension and comprehension aids confidence. If we can find a way in which to let the public and those who inform them know in understandable terms the structure of both banding and guidance, that will be a good thing.

I echo the point made by the hon. and learned Member for Redcar. An individual who is not a professional in the judicial system will see each case in isolation. He will not look at the newspapers every day, study the law reports and find out what the span of sentencing is; he will look at the case that affects him or in which he is interested, or to which his attention has been drawn by a journalist, and will have a fragmented view of what the sentencing system is likely to deliver. However, if he were made aware of the entire span of considerations, the range of offences and the consequences, in sentencing terms, he would have a better understanding of where that individual case and those particular circumstances fell within the range.

The hon. Member for Nottingham, North is at pains to set out the freedom of discretion that is properly available to the judiciary. We shall come back to the matter later. I was concerned at one stage when he spoke about a single tariff point rather than bands,

because that is to move away from the point. The discretion is there and it is not unreasonable that in circumstances in which a broad band is set out but a judge exercises his or her discretion to sentence outside of the band, an explanation is adduced for his or her having done so. The public have a right to expect that, and those involved in the case are entitled to know why, in those circumstances, the judge has sentenced in a way that seems to fall outside the norms that have been set by the Sentencing Guidelines Council. For all those reasons, the amendment is a useful start for a debate. It might not be perfect, but I hope that the Minister will give it appropriate consideration.

David Cameron (Conservative, Witney)

I want to help out my hon. Friend the Member for Beaconsfield. Perhaps we are reading too much into the word ''band'' in the amendment. We should consider what the Court of Appeal produces, for example, on burglary. The celebrated case is the Lord Chief Justice's Court of Appeal judgment in the case of Regina v. McInerney and Keating. It took the Sentencing Advisory Panel's views about burglary and gave a commentary on them. The panel had defined a standard burglary and added some aggravating and mitigating features—it was not complicated stuff.

That said, I would like to think that we, as parliamentarians, could draft things rather more clearly than they have been in the law reports, which are extremely complicated. I do not see why the proposed sentencing council could not do much of the work suggested by the hon. Member for Nottingham, North. It could say not only that burglary would carry a sentence of somewhere between one and 10 years, but that standard burglaries and standard burglaries with some or many aggravating features would carry particular sorts of sentence. That is what the Court of Appeal does. Could not the council do that, and could not Parliament scrutinise it, as we have discussed? That would be much better than the current proposals, which everyone seems to have misunderstood. Indeed, the Lord Chancellor, the Home Secretary and the Prime Minister seem to have completely misinterpreted what the Lord Chief Justice said. Sadly, however, I do not think that I will get my new clause 10.

Hilary Benn (Labour, Leeds Central)

This has been an interesting exchange, because we started with a plea for greater clarity for the benefit of the public but then began to do the Sentencing Guidelines Council's work for it. None the less, the discussion has been interesting, because it has teased out hon. Members' understanding of bands and how they relate to mitigating and aggravating factors.

We certainly envisage that the guidelines will set ranges of appropriate sentences and suggest starting points within each range, depending on the circumstances of the case, and that is perhaps slightly more flexible than a standard band.

The intervention of the hon. Member for Beaconsfield demonstrated the difficulty with accepting the amendment, and the precise reasons

emerged in the little debate that ensued about what it meant. It would be inadvisable, in determining the most appropriate way to bring the clarity that we all seek to the sentencing system's work and its application in practice, to fetter in statute the council's discretion as to the form in which it publishes its guidelines.

I hope, however, that I can reassure my hon. Friend by saying that we anticipate that the council will publish its guidelines in a single document that can be amended and added to as new guidelines are agreed. We envisage that that document will be readily available to the public electronically and in hard copy. The amendment therefore has a second deficiency, although, again, I recognise its spirit. It would not be sensible to tie the publication of the guidelines to the annual report, because the guidelines will be continuously available in other forms. They should not be solely confined to the annual report, which, by definition, will appear only once every 12 months.

With that reassurance, I hope that my hon. Friend will withdraw the amendment.

Graham Allen (Labour, Nottingham North)

I think that the Minister has reassured me that we are dealing with not only a legal process but a political and public process. I tabled the amendments so that the sentencing council's work could be opened up to public understanding, which would immensely reinforce the work that is done in the courts and in the council. I thank my hon. Friend for his comments and I hope that he will bear our ideas in mind as his discussions on the issue progress. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 679, in clause 153, page 85, line 32, leave out 'as definitive guidelines'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments:

No. 680, in clause 153, page 86, line 13, leave out subsection (8).

No. 681, in clause 153, page 86, line 21, leave out subsection (9).

No. 542, in clause 153, page 86, line 22, after 'appropriate', insert 'if the Lord Chief Justice so consents,'.

No. 701, in clause 153, page 86, line 22, leave out 'as definitive guidelines' and insert 'as its recommendation to Parliament.'.

No. 702, in clause 153, page 86, line 22, at end add—

'(10) The appropriate committee the House of Commons will consider any recommendations issued by the Sentencing Guidelines Council and report on them if it thinks fit.'.

No. 703, in clause 153, page 86, line 22, at end add—

'(11) A copy of the guidelines shall be laid before each House of Parliament and the guidelines shall only have effect after approval by resolution of both Houses.'.

Dominic Grieve (Conservative, Beaconsfield)

The discussion now moves on to the proposals that I and my hon. Friends came up with on

how to involve Parliament. It is a probing amendment, designed to stimulate discussion. I shall outline what is proposed.

We would alter the provisions of the clause so as to remove some of the procedure to be followed by the Sentencing Guidelines Council, substituting for it—this is the nub of the matter—two key provisions, which are included in amendments Nos. 702 and 703. Instead of publishing definitive guidelines, we suggest in amendment No. 701 that the council should publish a recommendation to Parliament. Once that has happened, amendments Nos. 702 and 703, which would insert new subsections, would come into effect. The effect of the amendments would be to make sentencing guidelines a statutory instrument, which would need parliamentary approval. To make the position clear, it would not be for Parliament to formulate the guidelines, but merely to express its approval or disapproval of them.

That ties us in with earlier discussions. First, how do we persuade the public that they have ownership of the issue and can provide input? We considered the proposals suggested by the hon. Member for Nottingham, North, who said that it could be achieved by having public representatives on the Sentencing Guidelines Council. In reality, however, that body will be a committee, as it were, of the great and the good, even if the so-called members of the public appear on it. We also touched on the fact that the sentencing guidelines are, in a sense, an expert matter. Many people, who are not judges, have expertise and should be heard. Simply to ask people off the street to help who have no experience of the range of offences or of many other issues would be unreasonable and not necessarily helpful. One of the reasons for having the Sentencing Advisory Panel is to provide professional and expert input to the judiciary from other directions. However, although the panel may consult the public, it is not made up of people drawn off the street.

Can we measure public approval? The normal way to do that, short of holding a referendum, is for Parliament to pronounce on the matter. We are here in a representative capacity, albeit not delegates. People regularly lobby us, and we are capable of forming and independent judgments. The Home Affairs Committee—it would be the appropriate Committee, although we cannot specify it by name—has the ability to call evidence, to hear expert testimony and to formulate recommendations to be put before the House.

Paul Stinchcombe (Labour, Wellingborough)

Does the hon. Gentleman not foresee problems with public confidence in sentencing, if the sentencing guidelines are to be openly criticised by Parliament immediately thereafter?

Dominic Grieve (Conservative, Beaconsfield)

That is, without doubt, a potential challenge. However, sentencing guidelines are being criticised by the public now, long after they are formulated. Most members of the public do not know what they are, and their ability to have an input into the process, save through the tabloid press, is limited.

The question arises whether it would be a grave constitutional issue for Parliament to approve the guidelines. I do not see that happening. We already provide for statutory maximums and, in some cases, statutory minimums. I shall not quote it again, but earlier I read out a passage that reminds judges that the fact that they do not like the statutory maximums set by Parliament does not mean that they should try to get round them by imposing maximum sentences in cases that do not meet the maximum gravity.

Those statutory maximums are the result of our decisions, and some are certainly open to criticism. For instance, we have upper sentences of 14 years for theft. Some people would argue that if the theft consisted of a huge or extensive amount of property or could be said to threaten the security of state, the maximum sentence might not be sufficient. I float the idea that we can already be criticised for our statutory maximums. It happens with burglary, as well, in particularly grave cases. Yet although we have decided upon such sentences, it is rare in my experience for the maximum ever to be imposed.

Parliament has provided for a maximum of 10 years' imprisonment for causing death by dangerous driving, and a judge recently sentenced a person to nine and a half years for that offence, which illustrates that he considered the circumstances to be exceptionally grave. Correspondence landed on my desk last week from concerned people who said that the nature of that person's offence was such that a life sentence would not have been considered inappropriate. However, Parliament took the deliberate decision that 10 years was the proper maximum. It is wrong to say that we are out of the process; we are absolutely in it.

I do not see there being a constitutional problem. The hon. Member for Nottingham, North said to me privately, and I concur, that one issue is whether it will be Parliament decides or the Executive. That is always a problem when giving power to Parliament, but I have a reasonable degree of confidence because we would not be dealing with state or policy matters such as the economy or health. I have heard more independent views expressed in the House on issues relating to sentencing than on any other issue. As Parliament's decision on sentencing is likely to be based on a Select Committee report, it is highly likely that Members would feel free to express robust views. We could do some good, but it is not without difficulty.

Time is short. I put the idea before the Committee for its consideration, and I would be grateful to hear the Minister's views on the proposal.

Graham Allen (Labour, Nottingham North)

Before I prove that I have gone completely native on the judiciary with amendment No. 542, I should pick up on some of the points made by the hon. Gentleman. I know where he is coming from; I appreciate his sentiment on the matter, and it is in line with that of other Committee members.

We need to involve Parliament in the process. The question is how to do it. It should be a rational process, not one based on reflex. That is what makes it rather difficult. I would have no problem in handing

over my sovereignty as a Member to any other Member in the Room to defend and express views about Parliament, particularly in relation to sentencing. I know that, as individual Members, everyone would behave quite acceptably. The problem comes when we change hats and become members or supporters of the Government, or members or supporters of the alternative Government. That is often the point at which we leave our integrity and our brains behind.

My worry is that in trying to reassure the judiciary that it has to be a three-way process between the judiciary, the Executive and the legislature, handing power to the Floor of the House would in effect disqualify parliamentarians from making their voice heard. It would give the Home Secretary two votes to one against the Lord Chief Justice. If I may speak for the latter, that would not be a good bargain, and he would be right to stand up for what he has now. That would make negotiations between him and Ministers extremely difficult.

In order to ensure that parliamentarians and the judiciary were content about Parliament's role, we would need to be extremely careful not to be perceived as having made the problem worse rather than better. The Minister suggested earlier that the Select Committee might be the best route to achieve that, although there are other routes. I fully understand where the hon. Member for Beaconsfield is coming from on this matter. He wants what I want, which is parliamentary involvement, but we have to devise a subtle and sophisticated mechanism so that it is our views that are heard rather than the views of the Government or alternative Government. Those views must also carry credence with the judiciary.

Paul Stinchcombe (Labour, Wellingborough)

Would my hon. Friend expect, in any event and as a matter of course, the Home Affairs Committee to invite the Sentencing Guidelines Council to give evidence and report upon that evidence?

Graham Allen (Labour, Nottingham North)

That would be an imaginative thing to do. It could be a two-way process if the Home Affairs Committee could be involved in the consultation, even as far back as the Sentencing Advisory Panel. Indeed, one of my amendments proposed that the Committee could initiate a review by the Sentencing Advisory Panel even before the matter gets to the sentencing council. Under another amendment, the Chairman of the Select Committee would be a deputy chairman and a member of the panel, so there would be access and two-way traffic. It would make sense for that discussion to take place openly.

I would be content with Members on both sides of that Committee, of which my hon. Friend was a distinguished member, representing Parliament. The hon. Member for Beaconsfield suggested that the Home Affairs Committee report could be debated on the Floor of the House, but we have seen what can happen when Select Committee reports that are not approved of by the Executive are debated there. Rubbishing takes place, and the spin machine goes

into overdrive against particular recommendations or even against individuals. At all costs, we must avoid that because it would make the situation worse.

Dominic Grieve (Conservative, Beaconsfield)

I agree about that, but that is one of my anxieties about having an ordinary reporting system to the Select Committee. If the Committee produces a report saying that it does not like a proposal, that is exactly what will happen. If Parliament has to vote anyway, it is less likely that the Government would be in a position to carry out that sort of exercise—because such a report cannot just be lost in the undergrowth. On the Floor of the House, it would be a high-profile issue when it came to the crunch.

Graham Allen (Labour, Nottingham North)

It would be only marginally better than the worst-case option, which is to put it baldly to the House. If it was easy, I am sure that the Minister would have dealt with it and that we would have a properly drafted clause to consider. However, it is open so that we can make a contribution, and we are grateful for that.

We have some extremely difficult things to think through. One of the most difficult, if not the most difficult, is how Members of Parliament can be genuinely represented in a rational and open process. I repeat that the hon. Gentleman and I—and all the Committee members to whom I have spoken—adhere to the principle and sentiment of his proposal. However, we cannot conjure up a consensus on how to go forward, except to say that it is an extremely difficult and sensitive matter, and that we may need a more subtle and sophisticated—and possibly more imaginative—solution.

I shall now speak to amendment No. 542, just to prove how native I have gone with the judiciary. The judiciary will need to be won over to this new and radical way of proposing and implementing sentencing. The amendment provides that after that protracted process—after 18 months of negotiation, during which time people will have been so nice to one another; after a referral to the Sentencing Advisory Panel, and after the panel has spent nine months or a year doing its job thoroughly, taking evidence, bringing in experts, conjuring up a report; after the Sentencing Guidelines Council has considered that report, and once Parliament and the Executive have become involved, all sitting around the same table, talking, networking, and with the Lord Chief Justice being present if he wishes—if the Lord Chief Justice, on behalf of the judiciary, feels that what has emerged from that long and careful process is not acceptable, he can say no.

Sitting suspended for a Division in the House.

On resuming—

Graham Allen (Labour, Nottingham North)

I have finished my remarks.

David Heath (Liberal Democrat, Somerton and Frome)

The point at which the Select Committee or the House has an opportunity to contribute to the process is important. That is why I am a little concerned about the amendment. It brings Parliament in too late and it allows the Executive to have the final say, if only by default: if it was taken on

the Floor of the House, there would undoubtedly be a whipped vote. I do not believe that the House would be given a free vote on sentencing guidelines. As we know, even with a free vote, Whips are occasionally tempted at least to influence the outcome.

It is slightly naive to suppose that it is possible to have an independent view at that stage, and I believe that the Executive should not have the last say on the matter. That is one reason why I am concerned about subsection (8). It seems inappropriate, having gone through those conciliatory and consensual arrangements, to pass it to the Secretary of State, only for him to say no. If anyone is to have the final right of veto, it should be the Lord Chief Justice.

A number of hon. Members have suggested that if a Select Committee were to be involved it should be the Home Affairs Committee. I would rather leave that option open, because one could argue that it should be the Select Committee for the Lord Chancellor's Department. I do not say that because my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) will be Chairman, but because that newly formed Committee will have a clear role in examining what that Department does—and sentencing clearly falls within that remit. I am not entirely sure that the Home Affairs Committee, which has an enormous Department to shadow and a great number of responsibilities, is necessarily the right vehicle. I do not wish to be prescriptive, but we should at least keep the option in mind that at least two Committees could have a proper role to play.

Hilary Benn (Labour, Leeds Central)

We are continuing a conversation that we started on the previous clause. We have a further opportunity to discuss the arrangements for parliamentary scrutiny and the operation of the council in creating the guidelines, courtesy this time of the amendments tabled by the hon. Member for Beaconsfield.

Sentencing guidelines are a relatively new concept. Practice in the Crown courts has been shaped over many years by judgments and precedents; it is now done through guideline judgments, having regard to the advice of the Sentencing Advisory Panel, which itself is only three and a bit years old. The magistrates courts are covered by the Magistrates Association guidelines, which have been going only for about three years. We are dealing with relatively new ways of working.

I shall describe the procedure that will apply if the provisions are agreed, because it will help us understand the place that the different parties will have in the process. The council will decide what guidelines it wishes to consider either of its own motion or following a request from the Home Secretary. The council will then commission the Sentencing Advisory Panel to give advice. The panel will be obliged to consult widely, although there is provision to exempt it from having to do so in urgent cases—for example, if new legislation is being quickly brought into force, or a concern arises requiring new or amended guidelines. The panel then tenders its advice to the council, and the council forms a preliminary view and issues draft guidelines to the Home Secretary. Whatever arrangement is established

by Parliament—that is what we have been debating; subject to what I said in response to the earlier debate, the current expectation is that it will be the Home Affairs Committee—the council would then allow up to two months for responses, and would then finalise and issue a definitive guideline.

That two-stage provision is designed to make the most effective use of parliamentary time. It would be for the Committee to decide how to conduct its affairs, but I concur with those hon. Members who said that if it were to undertake that function, the Home Affairs Committee would wish to invite witnesses, including from the Sentencing Guidelines Council, and the Home Secretary. It would produce observations to be sent to the Sentencing Guidelines Council, or it would produce a report to Parliament on the proposals themselves, which may be debated. When the guidelines have been published, the Committee may wish to meet with or without witnesses and produce a report to Parliament. That would be a flexible system.

The Sentencing Advisory Panel plays an important role. Hon. Members are probably aware that it is a Home Office-sponsored non-departmental public body. Members are currently appointed by the Lord Chancellor, in consultation with the Home Secretary and the Lord Chief Justice, after open advertisement and competition. The current membership includes people with direct judicial experience at Crown courts and magistrates courts, academics, a serving chief probation officer, a former deputy chief constable and others from education, health and other backgrounds. Until recently, a former director general of the Prison Service was a member. Agreement has been reached to extend the membership to include an individual with current or recent experience as a prosecutor.

The panel is obliged by statute to consult a range of organisations prescribed by the Lord Chancellor, in consultation with the Home Secretary and the Lord Chief Justice, including Victim Support and organisations representing police officers and prison staff. In fact, it consults more widely; and when appropriate, as we heard earlier from my hon. and learned Friend the Member for Redcar, it commissions public surveys.

I recognise the probing nature of many of the amendments that suggest the removal of certain subsections. My hon. Friend the Member for Nottingham, North spoke on several occasions of the Lord Chief Justice's chairing the Sentencing Guidelines Council. Strong support has been expressed for his role, not least because the council is continuing the role currently undertaken by the Court of Appeal, Criminal Division, of which the Lord Chief Justice is head. In those circumstances, I see no benefit in providing him with a casting vote, which would be the effect of one amendment. Leaving the final decision to a single member of the judiciary, however eminent, would be less satisfactory than at present. The guidelines are currently delivered by courts, or through the efforts of a group working on the magistrates courts sentencing guidelines; they will be delivered in future under the arrangements that the Sentencing Guidelines Council itself is to establish.

Preserving proper judicial independence is therefore extremely important.

I repeat with great brevity what I said on earlier amendments. When it comes to the precise nature of Parliament's role, hon. Members have offered various solutions to achieve the necessary subtlety and sophistication. I recognise that we are all reflecting on it as we speak—the Government, the Opposition and those who subscribed their names to amendments—and that we will return to it on Report. I hope that this afternoon's conversation will continue, because I know that my right hon. Friend the Home Secretary is genuinely interested in the range of ideas on how it can be achieved. To the extent that it might be possible to achieve a consensus, it would clearly be beneficial if we could do it by the time that we reach Report.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for his comments. In a moment, I shall ask the Committee's leave to withdraw the amendment. I am mindful of the criticisms that have been made of the proposal; it was not perfect, and I realise that it had inherent problems. However, it is too easy for such a parliamentary dimension to be watered down and sidelined. I fear that it will be diminished if it is left to the mechanism of a Select Committee; history shows all too clearly how easily that can happen. I have served on other Select Committees and seen how easy it is to shunt a subject into the long grass. If we want Parliament to do something, Parliament must play an affirmative role in the process.

I realise that that is difficult, but I hope that the Minister will consider that aspect and that we can reconsider the matter on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sitting suspended for a Division in the House.

On resuming—

Clause 153 ordered to stand part of the Bill.

Clause 154 - Functions of Sentencing Advisory Panel in relation to guidelines

David Cameron (Conservative, Witney)

I beg to move amendment No. 709, in

clause 154, page 86, line 41, at end add—

'(5) With respect to burglary, the sentencing advisory panel and the sentencing council must have regard to the sentencing framework set out in section (Custodial sentences for burglars).'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following:

New clause 11—Custodial sentences for burglars—

'(1) Anyone convicted of the offence of burglary should be sentenced to a minimum of two years in prison, save for the exceptions given in subsection (2) below.

(2) The court may disregard the mandatory custodial sentence for burglars in subsection (1) above if, and only if—

(a) it is the individual's first conviction for burglary; and

(b) the court judges that the case includes exceptional circumstances, as in subsection (3) below.

(3) ''Exceptional circumstances'' includes—

(a) that the court judges that the defendant is unlikely to reoffend; and

(b) that the offence for which the defendant is found guilty does not include any violent or threatening behaviour or other aggravating features.'.

David Cameron (Conservative, Witney)

It is not often that one gets three minutes to try to bring about fundamental change in the way that burglars are sentenced. We seem to have reached new clause 11 without considering new clause 10, but no matter.

The new clause deals with the crime of burglary. There is huge confusion about the issue, some of it brought about by the Government. I do not think that it is all their fault, because the system, as we discussed this morning with reference to guidance, is so hugely complicated. I was already packed up and ready to go, so I can hardly describe my simple amendment and new clause. However, from memory, they would provide for a minimum sentence for burglary of two years in all but the most exceptional circumstances. I define those tightly; the offence should be a first offence and—I do not say ''or'', but ''and''—there should be no aggravating factors whatever.

My amendment would be a good thing because, as I said, no one understands the current guidance. It involves no accountability. My new clause is beautifully simple. It comes from a straightforward view of burglary as a hateful and in many ways violent crime—because people's houses are invaded—and a premeditated crime. Burglars are prolific criminals. The scale of the problem can be suggested by my telling the Committee that in 2000–01 there were 836,000 offences of burglary, accounting for 16 per cent. of total crime. That is more than 1,000 for every constituency in the country. The courts are not the only place where there is a problem with respect to burglary. The number of burglars against whom proceedings were taken in 1990 was about 43,000. By 2000 it had dropped to 26,000. There is an awful lot that must be done before getting to court.

Current sentencing figures for burglary may suggest whether my new clause would work or would clog up the prisons and be impractical. I do not think that it would. The figures for 2000 show that, of the burglars sentenced, 81 per cent. of those who entered a guilty plea were given custody and 17 per cent. were given a community sentence. Of those who pleaded not guilty, 85 per cent. were given custody and 12 per cent. a community sentence. The average length of sentence was 24 months for a guilty plea and 28 months for a not guilty plea. Therefore, I do not think that we are talking about a big increase in the prison population.

In the remaining minute, I want to clarify the three vital things that my amendment would do. First, it would send a clear message that burglars will go to prison—we do not send such a message at the moment. Secondly, it would provide for a tough minimum sentence—not an inappropriate sentence—that made the average the minimum, which would be highly desirable. Thirdly, it would provide for

exceptions only in the most restricted circumstances. It would, therefore, be good for confidence in the criminal justice system, good for victims and good for the police.

It being fifteen minutes past Five o'clock, The Chairman proceeded to put forthwith the Questions necessary to dispose of the business to be concluded at that time.

Question put, That clauses 154 to 156 stand part of the Bill:—

The Committee divided: Ayes 12, Noes 5.

Clause 157 - Duty to give reasons for,

David Cameron (Conservative, Witney)

On a point of order, Mr. Cran. Given that we are in the extraordinary situation of being unable to discuss all the provisions on community orders, suspended sentences—

James Cran (Conservative, Beverley and Holderness)

Order. That is not a point of order for the Chair.

Clause 157, as amended, ordered to stand part of the Bill.

Clauses 158 to 162 ordered to stand part of the Bill.

Schedule 7 - Breach, revocation or amendment

Clause 166 - Restrictions on power to make intermittent custody order

Schedule 8 - Revocation or amendment of custody plus orders and amendment of intermittent custody orders

Clause 173 - Periodic reviews of suspended sentence order

Schedule 9 - Breach or amendment of suspended sentence order, and effect of further conviction

Clause 192 - Alcohol treatment requirement

Clause 202