Order. I should explain, as was explained yesterday, that although the Chair of the Committee would normally sit in the Clerk’s chair during Committee stage, in these exceptional circumstances, and in order to comply with social distancing requirements, I will remain in the Speaker’s Chair, although I will be carrying out the role not of Deputy Speaker, but of Chairman of the Committee.
Clause 1
Consolidation of sentencing legislation: amendment of law for old offences
Question proposed, That the clause stand part of the Bill.
The Bill seeks to pave the way for the consolidation of sentencing procedural law in the forthcoming sentencing code. Currently, when passing sentence, a sentencing judge must consider the sentencing law that was applicable at the time of the offence. Given the number of different pieces of sentencing legislation passed over the years, that is often a complicated exercise. When reviewing that area, the Law Commission discovered 1,300 pages of legislation governing sentencing in this country. When it conducted a review in 2012, it discovered that errors were made in sentencing in 36% of cases, we think as a consequence of the extraordinary complexity of having to work out which piece of sentencing law applied at the time of the offence. Therefore, given the concept behind the sentencing code and its essential precursor, the Bill will ensure that a single set of sentencing legislation is applicable at the time of sentence, to which sentencing judges may refer.
The Law Commission was asked to look at this issue in September 2014. After Herculean labours it reported back in late 2018, but as a consequence of various general elections and other constitutional disruption, only in 2020 do we finally enact this Bill. I put on record my thanks to the Law Commissioners for their work, and particularly Professor David Ormerod, QC, for the enormous amount of work he has done in preparing the sentencing code for which this Bill paves the way.
As I understand it there are no amendments to the Bill’s five clauses, but I will briefly speak to each clause—I will be extremely concise. There are two substantive clauses. Clause 1(3) contains a clean sweep provision that removes those historical layers of sentencing law legislation to which I referred, so that when the sentencing code is enacted, which will be soon, sentencing courts will no longer need to refer to the historical versions of sentencing law in place at the time of the offence, and can instead refer to the sentencing code that was in force at the time of sentence.
This is the first piece of legislation that I am leading on as a shadow Justice Minister, and I am sure that it will be the first of many over the coming months, particularly given the Government’s legislative programme and the need for action in so many parts of our justice system. It is very clear to me, and to others, that the Government are facing a series of crises, from the impact of the coronavirus in prisons to the huge backlog of cases in the Courts and Tribunals Service, which had reached over 1 million, months before the pandemic. Much action is clearly needed.
I join the Minister in thanking the Law Commission and others who have been working so diligently on preparing this material. As has already been said, this is a largely technical and uncontroversial Bill and we have tabled no amendments. We agree that we cannot continue with complicated and complex guidance on sentencing, which is resulting in unfair sentences that are causing further problems, such as costs and delays in justice processes. Our current system is in no way perfect, by any measure. A near-dysfunctional mess of mixed legislation and amendments has, over time, led to wrong sentencing decisions resulting in lengthy and costly appeals, adding more and more stress to what is an overburdened justice and court system, as I referred to earlier. There must be a standard approach to provide clarity.
Offenders receiving unlawful sentences is unacceptable. That could mean offenders receiving more lenient sentences than the law says they should receive, or it could mean an excessive prison sentence outside of the guidelines for the particular offence committed. The Minister pointed out earlier that the survey showed that 36% of sentences were seen to be wrong. That is unacceptable in a just judicial system.
2:00 pm
I am pleased that, however slowly, progress is being made. By making the justice system clearer, we can hopefully clear the backlog that has built up over a decade of cuts to courts and legal services, and I for one look forward to hearing the Minister’s strategy to do so. The removal of historic layers of legislation will provide greater clarity for professionals. No longer should complexity be a barrier to ensuring that justice has been truly served. Of course, it is not just about being more straightforward for those who work in justice; that also ensures public confidence in our justice system. Those who are facing the justice system need the clarity and understanding that often is not available due to the complications of amendments to sentencing over the years. It feels that we have a long way to go, but we have taken the first steps to restoring faith and efficiency in our justice system.
It is important that we work with stakeholders, and I am pleased that the sentencing code being considered in the other place has received widespread support, including from legal practitioners, judges and academics. Those stakeholders know at first hand the difference that such changes will make for the lives of other people. I hope that the Minister will welcome our working with those who have experience in justice matters in relation to future Bills. Consideration must also be given to the scenario of amendments being made to sentencing law in the future and ensuring that the principle of the sentencing code is followed properly. I will try not to talk too much about the code, and save that for when the Bill is before the House.
I have some questions for the Minister, which I hope he will be able to answer to provide clarity for me and colleagues. As we have finally got the Bill to this stage, will the Minister update the House on the progress of the Sentencing Bill, which follows this one? It had its First Reading on 5 March this year in the other place, but we are still waiting for a date for Second Reading. Will he confirm that the Bill is to be referred to a Joint Committee on Consolidation? When will its membership be agreed and when will it sit? Will he also confirm when the Sentencing Bill is likely to have its Second Reading in the House of Commons and the expected timeframe for it to be completed? A few minutes ago, he said that he expected that to be soon, but it has some way to go yet in the other place.
I ask that specifically because before the Sentencing Bill and therefore the code come into force, other legislation, including the Counter-Terrorism and Sentencing Bill, which has its Second Reading in this House next week, cannot be enacted. Will the Minister confirm that that is the case? Does he agree that any further delay would be problematic and would not best serve justice in this country?
In conclusion, we on this side of the House fully support the Government’s intention in concluding the Law Commission’s work, and we will not oppose the contents of the Bill. I look forward to the Minister’s responses and working with him moving forward, ensuring that our legislation and regulations are fit for purpose and serve the best interests of the public.
I am delighted to see the hon. Member for Stockton North (Alex Cunningham) in his place on the Opposition Front Bench. I know that the Justice Committee, which I have the honour to Chair, will look forward to engaging with him and the Minister as we go forward on these issues. May I adopt a number of the questions that he has raised with the Minister, which are not partisan but important questions of procedure?
As the Minister rightly said, this is an important and technical Bill. It is warmly welcomed and, I think, universally supported among practitioners and, I hope, by the broader public too. It is therefore important that the substantial Bill makes progress as soon as possible. I join both Front Benchers in paying tribute to the work of the Law Commission. I might mention that again on Third Reading, as I know the Lord Chancellor will wish to do. I particularly want to mention the work of Professor David Ormerod, who was the criminal law commissioner for a period and recently retired. He has done exceptional work in this regard and has been almost the principal driver behind the measure and the code itself.
I particularly welcome the introduction of the “clean sweep” provisions in clause 1. That is novel, but it is much to be commended, and I hope that this will not be the only occasion on which it is used. Incorporation by reference, which is the style of legislative amendment we tend to have now in this country, can create inconsistencies and anomalies, and it is quite a bold measure to have a consolidation platform of this kind. I am glad to hear the Minister say that it is not intended that anything should undermine either the common law or article 7 rights that there shall not be retroactively greater punishment than would have been available at the time.
I particularly welcome the Minister’s reference to the need for linguistic clarity and consistency in sentencing legislation. That has been a real difficulty for those of us who have practised and sat in the criminal courts over the years. At the moment, about eight statutes have to be referred to, depending on the nature of the offence, and experienced professional judges can get this wrong as much as anyone else. I ask him for assurance that the Government as a whole will bear in mind the need for linguistic consistency in any further sentencing measures that may come forward. Many Bills may have sentencing provisions attached to them, and it is important that, having got consistency through clause 1, we do not lose that by a departure from that approach in future legislation, not all of which will necessarily come from the Ministry of Justice. I hope that the Government will take those points on board.
I concur with the hon. Member for Bromley and Chislehurst (Sir Robert Neill). This is an uncontroversial Bill that has support right across the House, and as such, I do not wish to detain the Committee for long. However, I want to return to a subject raised by my colleagues on Second Reading, and I would be grateful if the Minister could respond today.
My hon. Friend the Member for Hammersmith (Andy Slaughter) raised the shocking statistic mentioned in the Library briefing that 36% of 262 cases sampled by the Law Commission involved unlawful sentences. This has potential serious repercussions for the administration of justice in our courts. One suggestion made by my hon. Friend was for the Government to publish a list of common mistakes made, to draw to the attention of the judiciary. The Minister said he would investigate that idea, so could he update us on his investigation or any work being done to draw up that idea?
I should state at the outset that, before coming to this place, I was a magistrate for 12 years and consequently sentenced a large number of offenders. For some 18 months, I was the magistrate member of the Sentencing Council. While there, I was party to briefings by the Law Commission on the proposed sentencing code that is indirectly the subject of today’s legislation.
The sentencing code is greatly to be welcomed, and thus so is this legislation. It must be right that sentencing law is as clear and straightforward as possible, in the interests of justice for all parties in a case, including, naturally, not only the offender being sentenced, but the victim of the crime, for whom clarity and certainty can be a comfort. It follows that it must be right to take the necessary steps towards achieving that aim by amending existing legislation to facilitate the enactment and operation of the proposed sentencing code. The clean sweep approach covered in clause 1 is a significant step that will help avoid errors and appeals resulting from historic or redundant aspects of legislation being incorrectly reflected in a sentencing exercise. I welcome the improvement that that will bring to initial sentencing decisions and am reassured that the concomitant safeguards against retroactivity will protect human rights.
Although the details of other clauses of this Bill may not seem to merit great discussion in and of themselves, they do form part of a significant and important process to improve a vital element of the criminal justice system. In the interests of brevity, I will reserve any other remarks for Third Reading. However, I ask the Minister to do all he can to ensure that the magistracy is properly trained once these provisions come into place, along with the sentencing code, to ensure that they are able to apply to all correctly and appropriately.
Let me start by also welcoming the hon. Member for Stockton North (Alex Cunningham) to his place on the Opposition Front Bench. Like him, I am looking forward to many exchanges in the coming weeks and months as we debate the volume of legislation coming through and other matters connected to our courts system. He mentioned the issue of the case load before the courts. Of course, the outstanding case load before the Crown court prior to coronavirus was significantly lower than it has been in the past, particularly in the 2000s, but we want to get it down even further. Naturally, coronavirus is causing a number of challenges in the courts, but he will know that we are reintroducing jury trials. That commenced on 18 May and they are now operating in seven courts. We intend to expand that as quickly as we safely can; we hope that a number of courts that have been closed will reopen as soon as they are safely able to do so. He will also be aware that we are expediting the roll-out of the cloud video platform, which will allow many, many hearings to take place on the platform which otherwise, owing to social distancing, would not be possible. This probably is not the time to rehearse everything in detail, but let me reassure him that a huge amount of work is being undertaken by the Ministry of Justice and by Her Majesty’s Courts and Tribunals Service to make sure that our courts system functions in the way that we want and that we avoid the accumulation of large backlogs as a result of the coronavirus epidemic.
The hon. Gentleman asked particular questions on the timing of the Sentencing Bill enacting the sentencing code. As I said, we are hoping to bring that forward in this House as soon as we can. I regret to say that I cannot give him a precise time, as it is still subject to agreement by business managers, but we want to bring it forward as quickly as we can. We will also make sure that regardless of the sequencing between that Sentencing Bill and the Counter-Terrorism and Sentencing Bill, they technically fit together. I was glad to hear him, in essence, welcoming the Counter-Terrorism and Sentencing Bill, which we will be discussing shortly; I hope it is one of those topics where we can approach it across the House in a bi-partisan spirit of co-operation. Matters touching on national security and protecting the public from terrorism are topics where, in general, we are able to work together, and I very much hope that will apply to that Bill as well.
I beg to move, That the Bill be now read the Third time.
In listening to the short but meaningful debate in Committee, I was struck by the number of contributions that dealt properly with the detail of this important measure. I speak with a high degree of personal experience, having expended many work hours as a practitioner and, indeed, as a part-time judge myself in trying to make sure that the relevant legal provision that applied to the particular sentencing exercise was complied with.
I thought to myself many times that the time I expended on making sure that the letter of the law was adhered to should have been time in which I could have been considering either the merits of the sentencing exercise or, indeed, the fate of the defendant whose sentence was about to be passed. That has to be the focus of the sentencing exercise: the justice of the case and the merits of the decision—an important, often life-changing decision—to be made by a judge or a magistrate about the sentence to be passed upon an individual defendant. Therefore, what we are doing in this House today is not a mere academic exercise; it affects the real lives of real people.
That is why for several years, as a Minister, as a Law Officer, as a Minister of State in the Department that I continue to serve in, and now as Secretary of State, I have pressed for this measure to be advanced before both Houses of Parliament, and I am particularly delighted to speak on Third Reading in its support. As we have heard, this measure paves the way for what will be the biggest consolidation in sentencing law ever undertaken in the history of the criminal law in England and Wales. What it will allow is the sentencing code, which is currently before the other place. It is that code that will bring together the procedural provisions on which the courts have to rely during sentencing. It will, for the first time, provide a coherent and unified structure. I firmly believe that it will assist greatly in reducing the risk of error, appeals on errors of law and, of course, delay in the sentencing process.
20 of 35 shown
We are, of course, extremely mindful of the well-established common law right that no offender should be subject to a heavier penalty at the point of sentence than was in force at the time of the offence. That right is enshrined in article 7 of the European convention on human rights, but the common law right long predates that. Therefore, in recognition of that important principle, there are a series of exemptions to ensure that no offender will suffer a heavier penalty than would otherwise have been the case. Those are expressed in clause 1(4) and (5), and in a wider list of exemptions enumerated in schedule 1.
Clause 2, the second substantive clause, essentially makes a series of amendments and modifications to existing sentencing legislation. Those are enumerated in schedule 2, which is quite long, and they essentially correct minor errors, streamlining sentencing procedural law. For example, they change language to avoid inconsistency and update statutory references. Because any consolidation must operate on the current law, we need to make those changes to enable the consolidation to happen in a technically correct way. They are therefore all essentially technical amendments to ensure that legislation works in the way that is intended.
I stress that the provisions of neither clause 1 nor clause 2 make any substantive changes to sentencing law. They do not increase or reduce the penalties for any particular offence; they simply clarify the way that sentencing law is available to judges to use when they pass sentence. It is a procedural simplification. Nothing in the Bill changes the actual level of sentences that are available to the courts to pass down.
Clause 3 is a technical interpretation clause, clarifying what is meant by the various definitions and phrases used in the Bill. Clause 4 provides regulation-making powers in the Bill, if any changes need to be made that are necessary for the implementation of the sentencing code and for no other purpose. Any such statutory instruments would be made by the affirmative procedure.
Finally, clause 5 sets out the commencement provisions. Although, of course, the regulation-making powers will have effect upon gaining Royal Assent, the wider force of the Bill takes effect only when the sentencing code has been passed. The sentencing Bill enacting the code will be before the House relatively shortly.
I do not wish to detain the Committee any longer discussing clauses to which no amendments have been tabled, but I hope that gives the Committee a flavour of the clauses’ operative effect. This is a piece of extremely important legislation that I think the entire legal community will strongly welcome. It is a shame that it could not have been introduced any earlier, but we are doing so today, and it will greatly improve the operation of criminal sentencing in this jurisdiction. I urge the Committee to agree that clauses 1 to 5 stand part of the Bill.
I think it will be generally welcomed by those who sat as recorders in the Crown courts, sometimes dealing with matters being sent up from the magistrates court on appeal, that the Bill will enable us to remove the current inconsistency of language between the law that must be applied in resentencing in the magistrates court as opposed to the Crown court. Although the effect is the same, and the rule on greater retrospectivity not being permitted remains the same, the language of the provisions relating to the Crown court and the magistrates court is different. That causes confusion when judges are sitting as recorders, or judges and recorders are sitting with magistrates on the Crown court dealing with an appeal from the magistrates court where they have to apply the magistrates court provisions. Anything that removes that anomaly is to be welcomed.
I think we all hope that the Bill is enacted as swiftly as possible. I note the observations of the noble Lord Judge, on behalf of the Joint Committee in the upper House, about the importance of the Bill and of it being a living instrument. Will the Minister reassure us that it is intended that all future Government legislation touching on criminal justice and sentencing matters will adhere to the principle behind the code?
My hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), the Chairman of the Justice Committee, echoed my thanks to Professor David Ormerod, which I wholeheartedly endorse and repeat. I wish to give my hon. Friend the assurance he requested that the approach he laid out here in terms of clarity, consistency and consolidation is a principle that we would wish to apply in the future.
It is no good doing the consolidation exercise once and simply having a snapshot. We want it to be, as he put it, a living instrument that will be applied into the future so that the consistency and clarity that the Bill and the sentencing code will bring are not frozen in time but rolled forward and applied in the future too. I can therefore give him the assurance that he asked for.
The hon. Member for Vauxhall (Florence Eshalomi) raised a question following up an intervention, which I recall, from her colleague the hon. Member for Hammersmith (Andy Slaughter) on Second Reading, which happened in a Committee Room a few weeks ago. I think I said that publishing guidelines on common errors that might be avoided was a matter probably best handled by the Judicial College, or possibly the Judicial Office. I will follow up again with them to check in on progress in that area.
In a similar spirit, my hon. Friend the Member for Aylesbury (Rob Butler), who is of course extremely experienced in this area, as he mentioned, drew attention to the importance of training. Again, once the sentencing code is enacted, the Ministry of Justice will work with the Judicial Office, the Judicial College and of course the Magistrates Leadership Executive to ensure that the training measures are in place so that the judiciary who are using the code are able to do so to best effect.
I thank Members who contributed to the debate for their very constructive and thoughtful comments. Again, I commend clauses 1 to 5 to the Committee.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clauses 2 to 5 ordered to stand part of the Bill.
Schedules 1 and 2 agreed to.
The Deputy Speaker resumed the Chair.
Bill reported, without amendment.
Third Reading
I know that judges in the Court of Appeal as well as practitioners the length and breadth of England and Wales will be relieved and delighted to know that this measure is making a swift passage. Having spent many hours delving through the pages of Archbold and Blackstone, the bibles of criminal practitioners, I can say that it was with a sinking heart each year that, when I had a new edition of those worthy tomes, I found that the sentencing chapter had got even longer and more complicated.
Now here is something that we, as parliamentarians, can do to make that job a more sensible one. The measure will also improve confidence that the public need to have in sentencing, because clearer law—accessible law—leads to greater understanding. One of the big issues about sentencing that has perplexed me for many years has been that gulf between what the practitioner and the lawyer might understand and how it is explained to the public. It is not good enough, which is why this measure is not only desirable, but essential.
Thanks have already been tendered to staff at the Law Commission and, indeed, to parliamentary counsel who have worked extremely hard on this complex area of law over the past five years. This is an exceptional achievement, Madam Deputy Speaker. I add my personal thanks to Professor David Ormerod, whose work on this and other measures has been of singular importance in improving the quality of our criminal law. Without their efforts I do not believe that we would have got here today.
This Bill lays the groundwork. It creates the foundations for what will be a consolidation process that will then allow the sentencing code to apply. It is, therefore, not just as the Secretary of State, but as a former practitioner and judge who has personal experience and, if you like, skin in the game that I rise with particular pleasure to commend this Bill to the House on Third Reading.