Contribution
My Lords, this group of amendments raises some interesting and quite difficult points. Amendments 9, 10 and 17 were introduced by the noble Lord, Lord Sandhurst, and also proposed by the noble Lord, Lord Wolfson of Tredegar. On first reading, they appear to set out, albeit in a more elegant form—as one would expect, I suppose I should say—the effect of an amendment introduced in the other place by the Conservative shadow Secretary of State Robert Jenrick. Mr Jenrick’s amendment sought to give the Secretary of State—that, is the Executive—a complete veto over the guidelines proposed by the Sentencing Council. His language—I abbreviate it slightly—was that the council must
“obtain the consent of the Secretary of State before issuing sentencing guidelines as definitive guidelines”.
That is what appeared in the amendment paper for the House of Commons, to which Mr Jenrick spoke.
That ran entirely across and counter to what we say is the proper constitutional position. The starting point is that the Sentencing Council is an independent body created by statute, with the job of advising judges on sentencing and the functions that I outlined in the debate on group 1. The judges are and must remain independent, and the judicial function is an independent function that must be, and always has been, independent of the Executive and Parliament. That is not to say that there should or should not be parliamentary oversight. Parliament sets the rules; it sets the maxima for sentences, it sometimes sets the minima for sentences, and it sets the political context. But the way in which the relationship between the judiciary, the Sentencing Council and Parliament functions has been explained by the noble and learned Lord, Lord Burnett, and his explanation demonstrates the subtle interrelationship between Parliament and the judiciary in this process. It is carefully drawn, and it is very important that that careful distinction is maintained.
The language in Amendment 9 is rather different from the language in the amendment of Robert Jenrick in the other place. But it is strange and it has a strangeness built into it that my noble friend Lord Beith picked out, because Amendment 9 would provide that sentencing guidelines about pre-sentence reports “must be submitted” to the Secretary of State by the Sentencing Council, and the Secretary of State
“must give effect to those guidelines by regulations”.
The point that my noble friend Lord Beith made was that it is not a matter for the Secretary of State to give effect to any guidelines by regulations, or indeed to do anything else by regulations. It is we in Parliament who make regulations. Certainly, they must be laid by the Secretary of State, but then Parliament has the decision-making power. Indeed, in the further amendments laid by the noble Lords, Lord Sandhurst and Lord Wolfson of Tredegar, this is subject to the affirmative resolution. As it stands, I do not understand how the Secretary of State can be required by statute to give effect to those guidelines by regulations when it is for Parliament to accept or deny approval to such regulations.
Furthermore, it seems to me that the overall burden of the first part of Amendment 9—when it says
“must be submitted to the Secretary of State”,
followed by the implication that the Secretary of State has no option but to give effect to those guidelines—gives to the Secretary of State a power that he does not have and denies any function in the approval or the denial of the guidelines to the Sentencing Council, beyond simply proposing them to the Secretary of State.
So it is our position that Amendment 9 is in fact unconstitutional and does not work. It is for the noble Lords who have proposed it to consider how they want to proceed, but I would suggest for now that they withdraw it and come back on Report with something that at least makes constitutional sense before they go any further with this.