I beg to move amendment No. 516, in

clause 126, page 73, line 15, at beginning insert

'Judges shall have discretion in the determination of all sentences. However,'.

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

No. 531, in

clause 126, page 73, line 15, leave out from beginning to 'the' in line 16 and insert

'In determining what sentence to pass on an offender, the court must consider all of'.

No. 640, in

clause 126, page 73, line 15, after 'offender', insert

'who is aged 18 or over'.

No. 600, in

clause 126, page 73, line 15, after 'must', insert 'in particular'.

No. 63, in

clause 126, page 73, line 22, at end insert—

'(f) in the case of an offender under 18 years of age, his welfare.'.

No. 641, in

clause 126, page 73, line 22, at end insert—

'(1A) Any court or youth offender panel dealing with a child who is aged under 18 at the time of conviction in respect of an offence must, in addition to having regard to section 37 of the Crime and Disorder Act 1998, have regard to the welfare of the child as a primary consideration.'.

No. 492, in

clause 126, page 73, line 24, leave out subsection (a).

We are now coming to some extremely important and, I hope, consensual matters.

One aspect of the criminal justice system that needs a great deal of work is sentencing. The view that sentencing is ripe for change is probably common ground not only among members of the Committee but among parliamentarians as a whole, the judiciary and the Executive. I hope that some of the changes proposed will command widespread support—that is, not merely cross-party support in the Committee, but from the Minister. I do not intend to make the issue partisan or to divide the Committee, and I hope that hon. Members will go along with that approach. Equally, I hope that the Minister will be able to take away some of the suggestions on which there is consensus in the Committee and have a serious look at them.

Will my hon. Friend accept congratulations from the whole Committee on his Back Bencher of the year award?

It is very kind of my hon. Friend to embarrass me this early. If you will turn a blind eye, Mr. Cran, perhaps instead of the very nice Hildon water that we have been drinking, a little later we shall have something else to celebrate that achievement.

There is, I hope, a broad-based view that change is necessary, although the Committee should not attempt to tie the Minister's or the judiciary's hands by being too specific. I hope that the process will be one of negotiation. We all accept that sentencing as a concept has recently come into some disrepute. That has not been by malice, but the comments of the Lord Chief Justice and the Home Secretary have added to the need for reform. Before Christmas, the Lord Chief Justice issued guidance on the back of an Appeal Court decision that, if read carefully, as I have done, can barely be argued with. However, the fact that it was not grounded in some common sense or was perhaps not presented with political acumen—why should the Lord Chief Justice possess that skill in addition to his many other skills?—led to sentencing coming into some disrepute from that quarter. That was perhaps totally unjustified, but that was how the matter was portrayed in the media.

In addition, the awful events in Birmingham, with the death of two young women in a shooting incident, led the Home Secretary to react as we all probably would have done in his position, and call for a mandatory five-year sentence for the possession of guns. I believe that we should all try to remove such reactions from the sentencing process and sentencing decisions. The amendments on the agenda today, which colleagues from all parts of the Committee have supported, attempt to set down a careful, protracted and considered, tested and well grounded basis on which to issue both sentences and sentencing guidelines. I hope that the legislature, the judiciary and the Executive can all agree on that concept.

The amendments enjoy the support of members of all parties in the Committee. I think that there is also some sympathy from the Government on this. I feel that what we need to do in this Committee—if I may be so bold—is to do our little bit to try to restore confidence in the criminal justice system, and specifically in the sentencing system. We all have our anecdotes; as constituency Members of Parliament, we have all heard people tell us, ''They are out of touch. Sentencing does not mean what it says. They just get a rap across the knuckles. They are let out after half their sentence.'' We are familiar with all the old stereotypes and prejudices that all our constituents regale us with. We have today, and possibly on the next day that the Committee sits, a chance to put that situation right, and it is incumbent on all of us—Government, legislature and judiciary—to seize that chance and get that right.

What we are looking at in this clause is a prelude to some of the later structural and organisational changes that are required in sentencing. In particular, amendment No. 516, which leads the group, is about judicial discretion. It may seem odd to start on that

aspect, but that was the order in which the amendments had to be placed within the group, so I shall deal with that first.

Whatever we wish to do to broaden and strengthen a sentencing council and deepen the roots of sentencing in the community, we must above all ensure that judicial independence in this country is not only maintained but strengthened. The Minister may correct me, but I do not believe that we have had a clear statement of judicial independence in law in the way that is proposed in amendment No. 516, which states clearly, for the first time ever:

''Judges shall have discretion in the determination of all sentences.''

That is how it is now, and that is how it should be, and it is right, before we talk about reform, that we reassure the judiciary that that is clear and is on the face of the Bill; if they are content with that, they may feel less worried about some of the changes that are proposed later in the Bill.

I thank the Minister and the Secretary of State for enabling the Committee to proceed in this way. Rather than being formulaic and ritualistic in this Committee, the Home Secretary made it very clear on the Floor of the House that he was

''very happy for Opposition Members in Committee''—

presumably he means those in opposition to the view, as it then was, of the Executive, in which I would include myself and many of my colleagues on the Labour Benches, who are attempting to be constructive on this clause—

''to table amendments to strengthen the role of the Sentencing Guidelines Council vis-à-vis Parliament. Let us debate it''.

I congratulate the Home Secretary on that. He also said:

''I am very sympathetic to the idea of the Select Committee taking a powerful role in this area, and I think that we are moving towards a consensus.''—[Official Report, 13 January 2003; Vol. 397, c. 425, 427.]

I very much agree.

If I may speak out of school, Mr. Cran, you and I had a private conservation before the Committee began about how constructive and positive our proceedings have been. I have experience as a Government Whip, and as a Back Bencher before that, and this has been one of the most positive Committees on which I have ever sat. The level of expertise shown by all parties, the commitment of the Front-Bench spokesmen from the Opposition parties to make constructive and positive proposals, and the Minister's openness in his responses are something that I have never experienced to this extent in 16 years in the House. We should take the chance to be constructive that that happy coincidence of factors gives us.

For the first time ever, it will be extremely useful to include in the Bill a specific statement that the judiciary should have discretion in final sentencing. My hon. Friend the Member for Bradford, West (Mr. Singh) looks puzzled, so I shall try to explain one point before he intervenes. That discretion should

always be within publicly understood guidelines and the statutory framework set by the House. At present, those guidelines rest exclusively—and sometimes controversially—with the Lord Chief Justice. This initial reassurance attempts to pave the way for a broader consensus, which later amendments cover.

I am puzzled. Does not the amendment preclude any mandatory sentencing at all? That is how it appears to me. If judges are to have the final discretion in any sentencing, that will exclude mandatory sentencing. That is not right. Parliament has a right to respond to public disquiet about sentencing for rape or other offences by setting mandatory sentences for those convicted. I think that the amendment would preclude that.

I am very grateful that my hon. Friend raised that extremely serious point, with which I agree. Like him, I am not a lawyer, so it is important to be clear about who does what if we are to create a wholly new, clear definition for the public and ourselves. I am not inhibiting Parliament's ability to pass statute law. What I am saying is that we shall all be much stronger if sentencing guidelines, or those specific sentences for specific offences, have gone through an extensive consultation period involving the judiciary, Ministers and ourselves. We do not want to end up in a bidding war over whether, for example, a burglar should get a one or two-year mandatory sentence. We do not wish to hear, ''I bid three,'' and ''Do I hear five over there?'' People go into reactive mode, which will create bad law and bad sentencing.

If my hon. Friend allows me—

Will the hon. Gentleman give way?

Yes, but later.

If my hon. Friend studies amendments Nos. 151 and 153, I guarantee that he will find the assurances that he and I both seek.

Does my hon. Friend agree that subsection (2)(b) is the answer to the question whether those sentencing principles do not apply in the case of a sentence that is fixed by law?

Yes, and that is how it has always been. My hon. Friend the Member for Bradford, West will draw reassurance from the fact that this is probably the first time that we have attempted to set out clear guidelines under a sentencing council. I may not have satisfied him, but I intended to do so, as I am sure the Minister did. We are not trying to pull a stroke on anyone, and the Bill should include whatever additional assurances the judiciary and the legislature require.

In a sense, my intervention has been made unnecessary by that of the hon. Member for Stafford (Mr. Kidney). The amendment says that ''Judges shall have discretion'', but their decisions must clearly be subject to the ceiling sentences, or minimums, set by Parliament. I assure the hon. Member for Bradford, West that the phrase cannot interfere with those.

I thank the hon. Gentleman for a typically helpful intervention. He has probably made the point that the hon. Member for Witney (Mr. Cameron) wanted to make just now when he tried to catch my eye. I need not give way to him now, although I will be glad to do so in future.

The hon. Gentleman is right to say that we will agree on certain issues as we try to establish the principles. However, he will be aware that some of us take the opposite view from the hon. Member for Bradford, West on this issue. The law as phrased does not preclude what the hon. Gentleman suggests. Some of us take the view that Parliament should fix the maximum sentence for every crime, but it should not be mandatory—not even for murder. The courts should always have discretion, because no two offences are ever the same.

I am tempted to have a little gentle fun at the hon. Gentleman's expense and to suggest that if I had made such a proposal, he would have proposed exactly the opposite. I know that he will take that in good part. That aside, I am pleased to say that there is 90 per cent. consensus on most of the sentencing proposals before us today.

The reason why we need to broaden the judiciary's sounding board in the sentencing council—while having the reassurance that a judge will make the decision in the individual case on the basis of the mitigating or aggravating circumstances—is that the determination of the guidelines is not a wholly judicial matter, and other voices must be heard. For example, sentencing guidance also relates to broader policy issues, and the prison population is the most obvious. Another is the public perception of crime, and we have a role to play in passing on public views. My hon. Friend the Member for Bradford, West witnessed the most appalling incident in his constituency, and his role in passing on people's views and their anger, and in looking for a constructive way forward, was evident in his intervention during yesterday's Prime Minister's Question Time. He made his view about what should happen very clear. Another public policy issue is the balance between the containment of serious offenders and the rehabilitation of offenders whom it might be possible to rehabilitate.

Such issues extend well beyond the judiciary. They raise policy matters of great concern to the Government, the legislature and those who sit on the other side of the partition in Committees—the public. They, too, want to understand and recapture their criminal justice system, in which they have lost considerable faith in recent years. Our job is an onerous one indeed.

Later, I will come to the composition of the sentencing council. In principle, however, it should contain leading members of the judiciary and be chaired by the Lord Chief Justice. It should also be a wider sounding board, with members of the Executive and the legislature able to feed in their views at the appropriate time.

The proposal in the Bill has, in effect, been bypassed. I mean no disrespect to those involved in

drafting the Bill, which was drawn up way before the Lord Chief Justice's pronouncement at Christmas, way before the sad events in Birmingham that led to the call for a mandatory five-year sentence for the illegal possession of firearms. The drafting carries no blame, but it belongs to a past age, not to the one in which we shall have to live.

If, once all these things have been agreed, we have an inclusive sentencing council, with the judiciary paramount, a judge hearing a case will have to take into account mitigation and aggravating factors. The sentencing council could be broadened to be very inclusive. For example, it could comprise a serving police officer, perhaps somebody nominated by the Police Federation, somebody from the Association of Chief Police Officers—that would be for the Committee and then the Government to decide—a serving probation officer, a prison governor who has experience of what picking up the responsibility for sentencing means, and a representative of victims' organisations, so that their views can be fed in.

Above all, however, unless the sentencing council proceeds by consultation and consensus, the Government, MPs and judges will continually be involved in wholly unnecessary controversy, disagreement and conflict, leading to further confusion among members of the public about what sentencing really means. A lengthy consultation process, with an advisory board researching—academically, if necessary—polling if necessary and coming to conclusions that are fed to the sentencing council, will allow all of us to agree a rational way forward, after which we can issue guidance. A protracted process of steady, careful reflection, rather than our battering each other in the media with individual cases, will produce a highly effective sentencing structure that will command the confidence of people in the United Kingdom.

If what we achieve through our proceedings is public confidence in and understanding of the sentencing process, we shall have done an incredibly valuable job.

Does my hon. Friend intend to refer to amendment No. 63, through which he aims to add the extra statutory purpose for sentencing of having regard to the welfare of an offender under the age of 18? I welcome the proposal if his intention is to reinforce the message of the Children Act 1989 that the welfare of a child is always the court's first concern.

My hon. Friend, as usual, puts these things far more eloquently than I could. I had not intended to do speak in detail to amendments Nos. 63 and 492, not because they are unimportant but, out of respect to the Chair, to try to save the Committee a little time by broadly introducing some of the later amendments as well. I am sure that the Minister will respect the fact that that does not mean that I do not wish him to refer to them.

Some of us are still studying the hon. Gentleman's amendments, of which there are many. Can he give us some guidance as to the role that he sees for the House of Commons in scrutinising the

sentencing council, as he would amend it, and in setting out what the normal sentences should be for a range of crimes? What strikes me about the Lord Chief Justice's judgment on burglary is that many of his points could better be discussed rationally and sensibly in Parliament.

The hon. Gentleman has made a pertinent point. I said what I said about the Committee without intending one word of it as flattery, but the issue will test the Committee's abilities. We all want Parliament to be involved in some way, but how to achieve that in practice is quite a difficult matter.

I have had discussions with the hon. Gentleman's colleagues. The Committee must avoid making things worse. If we were merely to decide that Parliament's view is what will be decided on the Floor of the House, the position could be made worse. That is because dealing with the matter crudely there, with a three-line Whip from all parties, would preclude the sensible debate that is possible in Committee about what should happen. I look to the expertise of hon. Members on both sides to find approaches to the problem.

There are some ingenious ways forward. The hon. Member for Beaconsfield (Mr. Grieve) has tabled some amendments that reach towards an answer and the hon. Member for Southwark, North and Bermondsey (Simon Hughes) has also discussed some possibilities with me. Labour Members want to contribute. The Select Committee on Home Affairs may provide a way of holding a sensible, careful discussion. However, I should be loth for the matter to be dealt with on the Floor of the House, with hon. Members being pushed through the Lobbies, because what the Floor giveth it can take away—often without rational debate.

Does my hon. Friend agree that we must at all costs avoid the politicisation of sentencing? I think that we are gently moving in the right direction, and hope that the process that we are engaged in today will amount to further steps in the right direction—that of removing the politics from sentencing policy. That would be in the best interests of the community at large and of politicians, too.

We could have an informed debate about the meaning of politicisation. Some of us believe that the matters in question are for ever political. However, the way in which different views are reconciled—not merely whether there is a majority—is the test of a democracy. The Committee needs to be very careful about how we reconcile the different views in the House of Commons, and about the mechanism by which we produce our view. We need to give the Minister every assistance in that regard. Equally, the reconciliation of the Executive, the legislature and the judiciary is highly important.

What I have described is itself a political process, but I know what my hon. Friend means by politicisation. Often it involves the media cranking up a reaction or an unconsidered view in relation to

many aspects of the structure of sentencing. We need to proceed with care, but provided we avoid approaches that amount to a crude ''Hands up in favour'' on the Floor of the House—and given the creation of a new Committee to deal with legal affairs, a well-respected Home Affairs Committee and the good will of the House and the Government—I believe we can find an appropriate structure and a way forward. Then the apposite point made by the hon. Member for Witney about how Parliament would be involved would be answered.

I want to pick up on the point that was made by the hon. Member for Wrexham (Ian Lucas). The hon. Gentleman may agree that one of the problems with the current system is that although, in theory, it should be devoid of political pressure, the impression that is often given is that it operates as a series of subtle nudges and winks between the judiciary and the Executive. A lack of transparency brings the system into disrepute. That consideration and the need to retain the judicial aspect of the discretion in formulation needs to be balanced with a system that enables the public to blame someone directly—or at least to address someone directly—if they do not like the guidelines that are in use.

At the end of the day, we shall all have to take some responsibility for sentencing. That is as it should be. The House, the judiciary and the Government should shoulder that responsibility. At present, there is pass-the-parcel sentencing. We are told, ''It wasn't me, guv, it was the Lord Chief Justice,'' or, ''It wasn't me, it was the Home Secretary,'' or even, ''It was those MPs reacting to what was in The Sun the other day''. We have to grow up. One way of achieving that is by having a structure in which we can all voice our concerns. If we do it carefully through the deliberately protracted process that I propose in later amendments, I believe that we can shoulder that responsibility. Committee members will then be able to face their constituents, and those of us who are lawyers will be able to face their colleagues in the legal profession and say, ''We understand what it means; we have worked it out. Let me explain that it has been done openly, honestly and over a period of time, so we have all bought into what the appropriate sentencing levels should be.''

Does the hon. Gentleman agree that the essential nexus, the essential dialogue, must be between the judiciary and the legislature? The Executive are the weakest link: their role is to bring forward matters for the legislature to determine and for the judiciary to execute. It is the Executive who are often driven by the headlines and by the political context to interfere in a process that strictly speaking is nothing to do with them.

If I wished to open a new area of argument, I would ask the hon. Gentleman whether the role of the Lord Chancellor fatally compromises anything that we may wish to set up.

I would have to spend a fair number of weeks attempting to devise a consensus that would attract the support not only of my hon. Friends but of hon. Members throughout the House—and, just as important, to allow the Minister the leeway, once we

have made our position clear, to consult the judiciary and his departmental colleagues. Even though the hon. Gentleman tempts me, I shall not rank in order of blame who is responsible for where we are now. However, we all know who is responsible for where we need to go, and I hope that our debate is a good foundation and sends the clearest message to the judiciary that it is not the intention of the Government or of the legislature to undermine the judiciary. Our intention is to strengthen its ability to help us and the police to combat crime.

Section 1 of the Justice (Northern Ireland) Act 2002 states that

''the continued independence of the judiciary''

shall be upheld. We find it helpful that that is stated in the legislation.

That is an extremely helpful precedent, and I am sure that the Minister has noted it. I repeat that I do not wish to hold the Minister to the words in the amendment that

''Judges shall have discretion in the determination of all sentences.''

No doubt he and his officials and parliamentary counsel can come up with a better form of words. Perhaps the hon. Lady in helpfully giving us the precedent of Northern Ireland legislation has given him a lead and a clue on that.

I shall not press amendment No. 516 to a Division, but I hope that the Committee will be able to participate in a wide-ranging debate. I trust that the Minister, having heard our voices, will come back with something more appropriate.

Finally, Mr. Cran, I thank you for allowing me to range fairly widely; I hope that it will have saved time in later debates.

I begin by thanking the hon. Member for Nottingham, North (Mr. Allen) for what I thought was a serious, reasoned and constructive speech. We all have cause to be grateful to him not only for what he said but for the way in which he said it.

The amendment, which says that

''Judges shall have discretion in the determination of all sentences''

is a good way to get the debate under way. That reminds me of the truest of principles, that there is no correct sentence for a particular crime. So much depends on what the judge who is passing the sentence sees and hears on the day when he or she is going to pass sentence. It is irritating for us to see, as we do quite often, newspaper headlines, especially in the tabloids, such as, ''Judge passes soft sentence''. Facts are selectively quoted that imply to the reader that a most grievous crime has taken place. The mitigating factors are not included, a lenient sentence is passed and there is uproar. The situation is most irritating.

Oddly enough, judges generally pass harsher sentences than the public think. There has been quite detailed research that asked members of the public, ''Here's a set of facts—what sentence would you

pass?'' In more cases than not, the sentence was harsher than the public imagined it would be. There are mixed signals and confusion. People's tempers are sometimes raised unnecessarily. Any judge would say that one can have an accurate understanding of sentencing only when one is in court, when one can see the whites of the defendant's eyes, and when one is hearing the defendant, seeing the defendant and seeing the remorse. That is why the amendment, giving a judge the discretion to determine all sentences, is a good way to get the debate under way.

I also echo strongly what the hon. Gentleman said—I hope that I paraphrase him correctly—about how the role of the House and Members is not to be insignificant as regards sentencing. The other side of that coin is that it is not right in such serious matters to have parties whipped to vote a particular way. I say that on the basis of the fact that there is terrific sense on both sides of the Committee. Government Members in the Committee have great experience of the courts and the legal system, as do Opposition Members. Some of our best discussions would take place in, for example, a Select Committee, or, if they were in the Chamber, on an informed and non-partisan basis. I have some good points to make, as do Government Members, and there are compromises to be reached on all those matters.

I should like to speak briefly to amendment No. 600. I do not remember—I shall be corrected if I am wrong—whether the purposes of sentencing have been detailed in statute before. I ask myself whether the clause and subsection (1) in particular will make any difference to the real world. Will the clause do any harm or will it do any good? What effect will it have on the judiciary, which has to pass sentences and inevitably takes into account all the factors that are mentioned therein?

Is the clause well phrased? There is an argument that it is not terribly well phrased. Professor Ashworth, a well-known academic, has described paragraphs (a) to (d) of subsection (1) as a laundry list of often competing purposes. There is no order of priority in relation to those paragraphs—indeed, there are possible conflicts between them. Some of those paragraphs could be divided further into sub-paragraphs.

For example, subsection (1)(b) refers to

''the reduction of crime (including its reduction by deterrence and its reduction by the reform and rehabilitation of offenders)''.

Reform and rehabilitation, and deterrence are two different purposes contained within one little subsection. Deterrence is not therein defined, but it, too, covers two separate aspects of sentencing and two different purposes: the deterrence of the offender by a draconian sentence, and that of the community, because that sentence will deter other people. All those factors are within judicial minds when sentences are passed by the courts. Inserting the words ''in particular'' would make the subsection refer to four purposes, not two prescriptive ones, because I am not clear from the clause whether other purposes of sentencing either exist or should be taken into account by the judge.

The hon. Gentleman is making valuable points. With his judicial experience, can he think of any additional purposes that he would have included in the clause? If he cannot, what is the point of inserting the words ''in particular''?

I thought long and hard about the different purposes of sentencing. Those four are reasonable, in that we all recognise them. However, I wondered whether we could or should subdivide them. Where is the reference to deterrence of the community as opposed to that of the individual? What is the priority between reforming an individual and deterring him? A judge will look at a defendant and will instinctively, as a result of experience, have a purpose in mind. However, should the court have to have an order of priority set out in statute? Where does the deterrence of the individual fit in, in terms of its strength of purpose, by comparison with the reform of the individual? That balancing act goes straight back to the amendments.

Does the hon. Gentleman consider that there should be some reference to proportionality? Following my own argument, if we are to have a clause that sets these matters out—I am not sure that it is necessary—there is an argument for proportionality to be part of the sentencing process. I hope that we shall not end up with a clause that puts a judge in a straitjacket or results in the prosecution, or anybody else, telling him that, in sentencing, he must take certain factors into account—there are no others in statute—and that he must use a certain order of priority in one type of case, and another in another. That would be difficult, because that is the sort of discretion that a judge instinctively exercises. I return to the question, is the clause in its present form worth having?

The real question for the Minister is: is the clause intended in any way to alter existing practice? If not, why have it? If it is, exactly what changes are proposed? If that situation changes, other changes follow. Hence my words ''in particular''.

There would only be a point in inserting the words ''in particular'' into the clause if there were additional purposes, not set out in the clause, that should be taken into account in exercising judicial discretion as to sentencing. The hon. Gentleman is a judge. What factors has he in mind that are not included in clause 126 but that a judge might take into account in sentencing a defendant?

That leads us to another debate. An important factor in sentencing is the prevalence of an offence in a particular community.

I have listened carefully to my hon. Friend's argument and to the intervention of the hon. Member for Wellingborough (Mr. Stinchcombe). One thing that is missing from the clause is the concept of prevention of crime. Is it not the case that judges occasionally think of giving the public a break from the offending behaviour of some prolific criminals? Is that something that one might like to add to the clause?

Yes. We are opening up the argument. Perhaps we might hear other suggestions. The clause refers to reduction in crime, but not to its prevention, nor to the prevalence of crime in a particular area. I am not troubled by their absence, because I know that the courts take all such points on board. However, I am mildly troubled by the narrowness of the clause and the ability or otherwise of the judge to take other factors into account.

My hon. Friend has touched on a point that we try to deal with in another amendment—the making of reparation to persons affected might not be construed as affecting the community as a whole. If that is the case, then the use of the words ''in particular'' would remove the need to put in the community, which is the point of our other amendment, but would still provide the safeguard that the judge could take that into account.

I do not want to stray into subsequent amendments—

Please do not.

Indeed, Mr. Cran, you rightly remind me not to, but I am tempted to stray into part of the next group to widen the purposes, because there is no mention of reparation to the community at large as opposed to individuals; that is a big factor in punishment.

I should like to suggest a modern precedent that might be relevant. In the Financial Services and Markets Act 2000, there are four statutory purposes of financial regulation. That has done a marvellous job in focusing the attention of the regulator without diminishing its range of powers.

The hon. Gentleman might be making a good point, but I know so little about financial services that it is barely worth making it to me. I take it on board and cross my fingers when I say that it is a good point.

The hon. Gentleman can definitely help with this point: the clause requires any court to have regard to these statutory purposes. Would he expect the new Sentencing Guidelines Council to have regard to them?

Yes, I suppose that I would. I have an instinctive dislike of putting too much in writing, because it is then regurgitated. We shall come later to the old business of offences so serious that only a certain sentence can be justified. We have heard it all before. That would bring me to another debate about tearing up statutes. I have said enough to illustrate my general support for much of what the hon. Member for Nottingham, North said, and to illustrate that the first part of the clause—which is laudable in many ways—should not be so tight that it removes the judge's general discretion to take into account what he thinks is appropriate in relation to a particular matter.

First, I join the hon. Member for Stafford in congratulating the hon. Member for Nottingham, North on the award that he received this week. It is well deserved. I thought that we should have no escape from him because, like many others, I woke up this morning and there he was on my radio,

proposing ways forward for the nation. That was welcome; I happen to agree with his view about reform of the other place.

Secondly, I observe explicitly a point that has been made implicitly. We are meeting for the first time after the House of Commons voted to set up a new Select Committee to monitor the work of the Lord Chancellor's Department. That was a momentous decision, which was taken after much protracted negotiation. It is an anomaly that such a hugely central Department has not benefited from the same parliamentary input and scrutiny as others. I greatly welcome the Select Committee and wish it well. In a way, it is probably more important than all the others because the Minister responsible for criminal justice is not a Minister in the House of Commons and not open to direct scrutiny by its elected representatives.

My colleagues and I have long argued—this is not a personal point aimed at any individual holder of the office—that we shall not give the public the best service until we change the Government structure in this respect. It must be given a name that the public understand, and the most obvious suggestion would be the Ministry of Justice, which is the name used in most other European countries, and in other countries, too. The Secretary of State responsible for justice should not only be a member of the Cabinet but be accountable and answerable to the House of Commons, like all his or her colleagues.

It is therefore an anomaly for the Lord Chancellor to have three separate functions, and that arrangement no longer works in terms of the division of responsibilities between the Executive, the legislature and the judiciary. He is not only a political appointment as a Minister of Justice, but the most senior judge in the country and the Speaker of the House of Lords. With the best will in the world, it is not possible for someone to carry out all those functions in a way that gives us confidence.

We must move on as part of the reform of the two Houses of Parliament. I hope that we shall do so soon and that we do not end our work until we have reformed the present arrangements. We now have a Select Committee, but we must also ensure that we have a Ministry of Justice that brings together work in this area, and that the person in charge is accountable to the House of Commons.

I welcome that somewhat premature speech of endorsement for new clause 4, which is about the creation of a Ministry of Justice, and to which we shall come in due course. Let me, however, complete my rather heavy opening remarks—they were necessary from my point of view—on a slightly lighter note. The hon. Gentleman will remember that Norman St. John-Stevas, who is now in the other place, felt that he had to move quickly to get Select Committees through the first Cabinet meeting of Mrs. Thatcher's new Government. He asked his colleagues—

Order. Mr. Allen, I have been very generous, but we must get back to the point of the exercise.

I shall move on, although two things immediately come to mind in relation to Lord St. John of Fawsley's proposals to introduce Select Committees—

Order. [Interruption.] Mr. Hughes, when I am standing, you are sitting. I insist that we get back to the Bill. I have been very generous until now, but we must get back to the point of the amendments.

Fair enough, Mr. Cran. I was being tempted, but perhaps we can return to the issue later.

My second overall point is that I share the general view—although I would slightly redefine it—of the roles of the three parts of the constitution. It is, indeed, for the Executive to propose, for Parliament to dispose of or come to a conclusion about proposals and for the judiciary to implement them. However, I have always taken the view—it is different from that of the hon. Member for Bradford, West—that the judiciary need complete discretion. I apologise if I have mentioned this before, but the most obvious, most acute example is that there is still a life sentence for murder on the statute book. However, cases can be very different. One person can plan a vicious, horrible and unjustified murder for years, while another may kill someone after 20 years of provocation, having been driven to do so by the mental and emotional cruelty that they have experienced in their domestic circumstances. Those cases are entirely different, which is why there should be discretion when sentencing someone and not just when deciding how much of that sentence they ultimately serve.

I appreciate the hon. Gentleman's point about life sentences, but does he not accept that there is very wide discretion about what ''life'' means when setting the tariff and that the recent judgment means that it will now be done wholly independently by the judiciary and not handled by Ministers?

The Minister is right in both respects, and Liberal Democrat Members have argued for a long time that the view of the European Court should become practice in this country: there should be no ministerial tariff setting. There is wide discretion in determining the length of sentence. That is not so applicable in policies such as ''three strikes and you're out'', which are mandatory. I can think of many examples of why that is bad sentencing practice and bad law. The best example is of someone who commits two burglaries after which there is a very long gap before they commit the third. In that time, they might have got a job, married and taken on responsibilities. A long time after their last burglary, they might technically commit the most minor of burglaries, one that was not aggravated, on premises that were not domestic and that were empty. It would be quite wrong to punish that person for crimes that they committed in the past and for which they had already been punished and to fail to take into account what they had done in the period between the second and the third burglaries.

Is not the problem with life sentences, and with other sentences, that the public do not

understand what the sentence means? Their cry, perhaps for vengeance, is not requited when a person is given four years and is released in two; or a person who is sentenced to life is released in six. It is not so much the sentence that causes the problem but how the sentence is served. That is why the public are unsatisfied. If we are to maintain discretionary sentences for serious offences—I think that we should have discretionary and mandatory sentences—is there not a role for the jury in determining sentences? Will the public have confidence—

Mr. Singh, we are now approaching a speech.

I am sorry.

I agree that one of the problems is that the public do not have confidence in the system because they hear one sentence and see another. I commend John Halliday for his report and I commend the Government for seeking to rectify that flaw. I give my unqualified support to the proposal that in future, after this legislation, the court will set the sentence. It must be clear that when a sentence of, for example, five years is being handed down, it is explained to the defendant, to everyone in the court and to the public and press that to get the best and most effective sentence some of it must be served inside and the rest served outside with conditions and controls attached. The great weakness of our sentencing system is that it is often when people leave prison that things go wrong. We must have effective management outside; otherwise, the sentencing system does not work. It should be made clear to the public that in future most custodial sentences—I am simplifying a bit—will be partly inside and partly on supervision and control outside and that if people misbehave they will be sent back to prison.

When I was being brought up in a village in south Wales, I remember the anger when people learned that a man who had murdered his wife or partner was to be released after serving four or five years, because he had been sentenced to life, or 10 years.

Juries should not pass sentences. I am a huge defender of the jury system, but juries should decide on the facts. Judges should pass sentences, because to do so requires the wisdom of experience, and training, of a sort that is not needed to establish the facts. The facts are for the jury to decide because their experience and training is in life.

Judges must compare one person with the next. I hope that I can persuade the hon. Member for Bradford, West to accept that sentencing would be very inconsistent because different juries would take different views. Judges in the same courts take a more consistent view and must distinguish between a case one week and one the next. Moreover, judges collectively take a relatively consistent view. I think that the hon. Gentleman, on reflection, will realise that there is huge benefit in leaving sentencing to the trained and fact-finding in the higher courts to those who do not have that training.

Is not the hon. Gentleman being slightly naive in thinking that the public will be reassured when so much of the sentence will be spent outside prison? Surely people want to know that the sentence served will be the sentence given, less time off for good behaviour, as I have set out in my proposed new clause 10, which Liberal Members will support.

Another trailer. The Conservatives are getting the entire menu out this morning, Mr. Cran. The only thing that they will not tell us is what the prices are. That is for the Minister to answer later.

I speak as someone who is another close contender for recognition as an eminent MP in this week's awards ceremony when I say that the hon. Member for Bradford, West comes up with good ideas and does good work on the Select Committee. I understand his point, but we must get away from the public thinking that sentences mean custody. The Halliday report and everything else are about effective sentencing. The big debate out there is how we can make community sentences and non-custodial alternatives effective. That is a real challenge. If I was in the Minister's place, almost my most important task would be to ensure that the non-custodial sentences were perceived to be, at the end of my time in office, as effective as custody is perceived to be, and to ensure that both were more effective than they often are.

My hon. Friend the Member for Bradford, West, and the hon. Members for Witney and for Southwark, North and Bermondsey are saying pretty much the same thing. They say that there must be honesty and clarity in sentencing. If those are present, the public will understand, and it will be easier for all of us to explain difficult judgments to our constituents. It is not possible to explain to an ordinary constituent how sentencing works because it is so bewildering and confusing. We shall do everyone a service if we bring honesty and clarity to the process.

I absolutely agree with that. There is a danger that the debate will become very wide, so I shall move on to the other amendments in the group. I shall make one more general comment, but then I want to hold back, not least because amendment No. 704 was tabled by my hon. Friend the Member for Somerton and Frome (Mr. Heath) and me. I am very keen to have a clause stand part debate, because that is the principle.

In this group, my hon. Friend the Member for Somerton and Frome and I have signed up to amendment No. 516, which the hon. Member for Nottingham, North moved. We have also signed up to amendment No. 492. Amendments Nos. 531, 640 and 641 stand in our names. I have spoken in support of amendment No. 516. I am grateful to the hon. Member for North Down (Lady Hermon) for giving us another example. We must learn from that. I am sure that we will be happy to try to achieve the best formulation, whatever it might be.

Amendment No. 531, too, is probing. It raises two issues; I shall deal with one now and leave the other, bigger issue for later. Subsection (1) states:

''Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing''.

The amendment seeks to ensure that, whatever we agree should be the purposes of sentencing—we shall debate later how many there should be and how they should be defined—the court should ''consider'' those purposes, not simply ''have regard to'' them. The purposes should be in the list for a reason. On reflection, I realise that the phrasing of the amendment is not particularly felicitous, and I should like to redraft it. I wanted to ensure that whatever we thought should be in the list should be considered and weighed, and not just noted and passed over.

Amendments Nos. 640 and 641 touch on a matter raised by the hon. Member for Stafford. They allow us to deal with the matter of additional purposes of sentencing in relation to people under the age of 18. It is a wide-ranging debate, but I shall put it as briefly as I can. Amendment No. 640 seeks to restrict the list to over–18s, the age of adulthood. There are those, not only in my party, who would argue that it should be 16, but legally full adulthood comes at the age of 18. The suggestion is that some principles should apply to 18-year-olds and older but that additional considerations are needed for those under 18. There is broad agreement for that. The Government have accepted it, as does the Youth Justice Board—I welcome its creation.

I hope that the principle of amendment No. 641 will find general support, although the wording may need to be discussed. It states:

''Any court or youth offender panel dealing with a child who is aged under 18''—

that is a child or young person—

''at the time of conviction in respect of an offence must, in addition to having regard to section 37 of the Crime and Disorder Act 1998, have regard to the welfare of the child as a primary consideration.''

The Crime and Disorder Act is the current framework for the youth justice system, which was welcomed throughout the House. Section 37 of that Act sets out the main purpose of the youth justice system as being the prevention of reoffending.

The Act, however, does not make any principled statement about the purposes of sentencing offenders under the age of 18. I shall list the various reasons for doing so. It is our domestic view and the strongly held view of all the organisations with an interest in the matter—including National Children's Homes, the National Children's Bureau, Barnardo's, The Children's Society, the National Association for the Care and Resettlement of Offenders and the National Association for Youth Justice—that we should separate the principles for dealing with under–18s from those dealing with over–18s.

I learned from criminologists the reality that people have a higher propensity to reoffend between the ages of 18 and the mid-20s, and that after that age, for all sorts of social reasons, patterns are set and the earlier offending propensity can be broken. It is certainly the case, however, when dealing with the child or young person, that we need an additional motive to prevent reoffending that would not apply to full adults.

There are two other reasons for hoping that the Committee will be positive about separating the purposes of sentencing for under–18s. First, we have international obligations. The United Nations convention on the rights of the child and the United Nations Committee on the Rights of the Child set good international standards. Secondly, in November 2001, the High Court granted a judicial review in a case brought by the Howard League in relation to the applicability of the Children Act 89 to Prison Service establishments. It seems that all the movement is to accept that those under 18 should be treated differently.

Does the hon. Gentleman consider his argument that youngsters should be treated differently for those purposes to be strengthened by the fact that 90 per cent. of those now in young offenders institutions present themselves to the authorities with either mental health problems or substance abuse problems in the year before they are sentenced?

That does strengthen my argument. I am aware of the characteristics of people who end up in such institutions. The adult offender population has similar characteristics. One can almost make a checklist that includes—not always, of course, but in the majority of cases—a background of deprivation, illiteracy, innumeracy, and so on. The other day we were debating gun crime. The police in London on Operation Trident do profiles of the people who are most likely to be involved. The vast majority conform to a sequential series of common characteristics.

I am very dubious about the whole proposition. There is a difference between a child and a young person. Some young people are the greatest troublemakers in my constituency. We are eroding the powers of parents to discipline such people at the same time as we are eroding the power of the state to discipline them. I cannot see the difference between a 17-year-old criminal and a 30-year-old criminal who have committed the same offence. We are in danger of being soft on such people. I see you looking at me, Mr. Cran, and I shall sit down.

The hon. Gentleman made his point perfectly adequately within the allotted time. I understand his point and why his view has been strengthened, given the constituency experiences that he has had. With respect, I think that he is wrong, and I urge him to talk to the Youth Justice Board and others if he has not done so already. Academics and those with professional experience, including the police, and the prison and probation services, come to a different view in all respects bar one. Of course there is not a clinical moment: 17-year-olds do not become different animals when they turn 18. There are 13 and 14-year-olds who are highly developed physically, emotionally, intellectually and in every other way. There are also late-developing 17, 18 and 19-year-olds. All that we can ever do is decide on a cut-off point.

The Liberal Democrats have always argued that the best dividing line is 16. I was nervous about that for a long time. I got into some trouble with colleagues, because I argued that adulthood should start at 17.

The 17th year is the first year after one can leave school, as one has to be at school until one is 16. However, my party's considered view—I have accepted it and been persuaded by it—is that, because one can leave school, go to work, pay taxes, join the forces, get married and so on at 16, that should be the divide. If that were the law, my amendment would say ''16''. There is a strong argument for having a set of policy proposals for those under 16, even if those people can cause just as much hurt, hatred and horror as adults can. They are not as emotionally developed. That is why, for example, I took the view, which was difficult to do publicly, that the youngsters who were guilty of the horrible killing of James Bulger in that shopping centre in the north-west all those years ago should have their cases reviewed at 18, as all youngsters should. It cannot be assumed that a very disturbed 10 or 11-year-old will not become a much reformed 18-year-old. I believe in forgiveness and in people's ability to be changed. I believe that young people's sins should not be carried through their adulthood, and that that is the attitude that we should take.

That opinion may be thought to be the view of a liberal and a Christian—and of those of other faiths with similar views about the possibility of people putting the past behind them. However, I also appeal to the views of a group of people who are much more authoritative than I am. I ask the Minister to study the joint report of Her Majesty's chief inspectors, entitled ''Safeguarding Children'', which was published in October last year. It found that the welfare needs of young people who committed offences were not being adequately addressed by the services responsible for their welfare, including the youth offending teams. I am not saying that I am right, only that the evidence that I have seen and heard about suggests that we need to accept different considerations, and that those may deal more effectively with the sorts of unacceptable behaviour that happened on the streets of Bradford and elsewhere, and that I have seen on the streets of Bermondsey.

The great merit of some of the Government's reforms, to which I pay credit, is that the Youth Justice Board programmes, which intervene with summer schemes, holiday schemes and out-of-school schemes, have shown huge—really phenomenal—success rates from targeting 14-year-olds who otherwise might enter the realms of criminality. It is possible to take them away from that and divert them. We need to try hard to adopt a more positive attitude. Of course wrong must be punished. I do not argue that parents should not take more responsibility; they should, but they find it difficult and they do not. Nor do I argue that society should not take responsibility. However, the punishment of sending kids away and locking them up—I have visited many of the places in question—does not normally, in my experience, produce better behaved kids. Often, at the end of their time behind bars, the kids are more likely to misbehave because they have met older, more seasoned criminals.

I agree with much of what the hon. Gentleman says, but I am disappointed with his response to the hon. Member for Bradford, West. Among all the worthy and esteemed bodies that he has said we should listen to, I have not yet heard him mention victims. Does he agree that we should also listen to the views of victims such as those that I spoke to on Friday, who told me of what they had suffered from an out-of-control group of youngsters? Could he also speak to youngsters who are victims? The case that I have just mentioned included well-behaved youngsters who were racially abused by a pack of out-of-control juvenile delinquents.

Of course victims matter. I hope that the hon. Gentleman will do me the credit of realising that during my whole time in the House—not just while I have been in my present job—I have argued for putting victims' interests high up the agenda. I believe—although my party did not accept the view—that after a guilty verdict or plea in a trial, the victim should be able to appear before the judge to say what effect the crime had had on them. That is how far I took my view of the matter, although my colleagues backed off from it and were nervous about it. Initiatives that allow people to be challenged by their victims—pilot schemes are still under way and there is a big one in the Thames Valley area—are effective. Victims' views are important, as the Government understand. Witnesses and victims are honoured and respected, and made much more central to what happens.

In Northern Ireland we have great difficulty with young people on housing estates. The Justice (Northern Ireland) Act 2002 introduced accredited restorative justice schemes in which culprits apologise to victims, and reparation, such as digging gardens over, is made. It works extremely well. We have such a scheme in my constituency and we should bear it in mind as an alternative to be included in the Bill.

As always, the hon. Lady is well informed and her contribution is on the button. Such schemes are increasingly used and increasingly successful. In south London we have the ''Karrot'' scheme, which is about incentives and rewards for good behaviour. We are also introducing ever more opportunities for young people to do things for the community that they have abused. Unless one teaches respect for people and place, one is not winning the battle during the formative years of young people for whom the gang can become all.

The hon. Members for Nottingham, North and for Woking (Mr. Malins) started the debate, and my hon. Friend the Member for Somerton and Frome made an important intervention. Colleagues will remember the case for change set out by John Halliday in his very good report, which answers the question posed by the hon. Member for Woking. We already have a set of principles relating to criminal law. The Criminal Justice Act 1991 sets out five principles: severity of the sentence should reflect primarily the seriousness of the offence—the just deserts principle; previous

convictions and failure to respond to previous sentences should attract a more severe penalty; the court can combine the offence and one or more offences associated with it in considering whether custody or community penalty is justified; custody should be reserved for the most serious offences; and community offences should play a full role in sentencing. It does not exactly parallel what we have been saying, and I support the new formulation, whereby one sets the principles of sentencing.

The Halliday report—I commend chapters 1 and 2, which I reread yesterday—sets out the limitations of the present framework. It shows that we have a muddled approach to persistent offenders, and makes clear the inadequacy of short prison sentences, the weakness of longer ones and the lack of confidence in community sentences. It covers all the things that colleagues are concerned about. The headings alone list muddled and weak enforcement systems; unnecessary rigidity; the muddled legacy; inconsistency; and lack of transparency—the point made by the hon. Member for Nottingham, North. The next section, which is on new opportunities, covers what works, youth justice reforms and improved outcomes. It then specifically sets out the things that we have identified as needing to be in the list: public confidence; deterrence; reform and rehabilitation; reparation; and incapacitation—that means making it impossible for people to commit offences by locking them up.

Halliday concludes in chapter 1 that there should be a new framework—we should do more to support crime reduction and reparation while meeting the needs of punishment. Interestingly, he also says that the Home Office should consider the scope for further research into ways of increasing current knowledge about sentencing. I remember seeing on its website some 18 months ago a quiz about the criminal justice system. It showed that the public are often unintentionally misinformed and think that sentences are lighter than they really are. One of the questions was ''What is the average sentence for rape?'' The public answers were much lower than the sentence that had been passed by the courts. I am happy to say—because we were asked by the press to do it without having a chance to check the answers—that I scored well on it, as did the right hon. Member for Maidstone and The Weald (Miss Widdecombe).

Most crucially—my hon. Friend the Member for Somerton and Frome was right in this—Halliday's big proposition is that the key issue should be proportionate sentencing. He outlines some principles in chapter 2. I suspect that there will be a great deal of debate on the list of purposes in the House of Lords, as many people will be interested in getting it right, including the hon. Member for Woking, who has thought about it often in a judicial capacity.

When we come to the purposes of sentencing, we might do two things, both of which my hon. Friend referred to. First, we could have proportionality as the central purpose—that the punishment must fit the crime—and secondly, we could help the courts by establishing a hierarchy of consideration. Unless we do

that, we will merely have a shopping list, which is what Professor Ashworth argued. If we are asked to take into account four—or six, according to Professor Ashworth—purposes without being given guidance on which of them takes priority, we will end up in difficulty. The hon. Member for Woking pointed out that the four paragraphs of subsection (1) contain a difficulty in that (b) is elaborated on and arguably becomes a three-in-one proposition, as it says:

''(including its reduction by deterrence and its reduction by the reform and rehabilitation of offenders)''

The Home Secretary called on us to get this right. If we can reach an agreed set of principles, I will sign up to them, but they are not yet right. We ought to separate young criminals from the older ones and we ought to make proportionality the central principle—but it is not mentioned in the clause.

Is it not important to distinguish between those considerations that we must take into account when sentencing and the purposes for which we sentence? Clause 126 is the first to set out the purposes of sentencing, whereas the considerations in the 1991 Act, and proportionality, are completely different. They are considerations that we must take into account when looking at the sentence itself.

That is a perfectly good argument, but there is a strong link between this clause and its purposes and determining the seriousness of the offence and how one responds to it. I understand the hon. Gentleman's point and I sign up to it. I want us to do what the Halliday report recommended, which was to ensure that we have a statutory framework and sentencing guidelines, which will come from another source, after proper consultation. The courts will then be seen to have what he, the hon. Member for Bradford, West and I all want: applied principles and set priorities. He may be right that we must get the purposes right and then list the priorities. I hope that that shows we are not being theological about this—like the hon. Member for Nottingham, North, we will not put our amendments to the vote. However, by the time this finishes in the Commons, we want to have got this clause right, and to that extent there is no party politics from us.

This is proving to be an interesting and wide-ranging debate on the principles of the purposes of sentencing. I am conscious of a remark made earlier about people offering their menu, but there is a great deal of beef to be consumed and digested in this part of the Bill. At the moment, we are on the Twiglets. My hon. Friend the Member for Woking pointed out, with a certain iconoclasm, but correctly, that although the clause is the subject of interesting debate, deleting it would make very little difference. I do not wish to get bogged down in excessive consideration of it, but I accept that there is justification for having a purposes clause. If one is to carry out a major reform of sentencing law, a statement that can correctly identify the key issues that must be considered to provide a parliamentary framework for sentencing is well worth while. The only concern that I have—it was highlighted in our amendments in this group, and in those of our amendments that are included in the next

group—is whether we are in danger of being too prescriptive.

I fully accept the point made by the hon. Member for Wellingborough, who asked whether we could think of anything that had been left out, but history tends to show that something has often been left out. That is a good reason for amendment No. 600, which would insert the words ''in particular'' and ensure that judicial discretion was not fettered—the very thing that the hon. Member for Nottingham, North wants to ensure through amendment No. 516. I throw that in for the Minister's consideration, and I would be interested to hear his views.

Inserting the words ''in particular'' would remove all my anxieties, which are manifested also in amendments in the subsequent group that deal with the question of whether ''persons'' are ''the community'' and whether that definition is sufficiently wide. There are two ways to approach that interesting argument, but we should be a little careful in setting out the framework not to leave the judiciary handicapped or fettered. That may be excessive caution on my part, but it would be silly to do something that later caused unintended difficulties. That is the purpose of the amendment.

I wholly support amendment No. 516, because it restates the principle of judicial discretion. It also provided the hon. Member for Nottingham, North with the opportunity to make some wide-ranging remarks about the purpose of other amendments, and the relationship between the judiciary, Parliament and the Executive.

The hon. Gentleman knows that when I first read his amendments, and although I fully support his intention—he will recollect my intervention on the absence of transparency in sentencing, and the way in which sentencing guidelines are fixed being a particular public anxiety—I may have read them with too much of a lawyer's mind. I was anxious that the judiciary have understandably proved reluctant to share the exercise of their discretion, even when setting guidelines, with those who are not part of their fraternity. It is easy to say that that is caused by a desire for exclusivity. It is more understandable if one considers their concern not to be seen to be in a minority against others who want something else, and to be seen to have fettered their views as a result of outside pressures and influence.

We shall have to return to that question when we come to consider amendments to clause 151. I will certainly be interested to hear from the Minister—I point it out now so that we can cover it properly when the time comes—what the Lord Chief Justice's response to the hon. Gentleman's proposals was. I assume that if the Government are going to show some favour to those ideas, they must already have engaged in consultation, and I would be interested to hear what it is. If the judiciary are comfortable with what is being proposed by the hon. Gentleman, I will be greatly reassured, because I am anxious to avoid a conflict.

That said, the thrust of what the hon. Gentleman is trying to achieve is something that I entirely share. That is why I decided that I could properly subscribe to the amendment. I am fascinated and happy to note the widespread support that it appears to command, and I hope that the Minister will be able to respond to it in a positive fashion. Moreover, as the hon. Gentleman pointed out, I tabled further amendments to emphasise the parliamentary role. I am mindful of the fact that it is not practical for Parliament to formulate sentencing guidelines. Indeed, a point that has been made about the relationship between the Executive and Parliament means that any real attempts at parliamentary formulation of guidelines will turn out to be Executive formulation of guidelines. There is an inevitability about that, about which it is easy to express regret. However, in most legislatures, it is difficult for the legislature to formulate independently of the Executive, especially as our Executive relies on the majority of the legislature in Parliament.

My feeling is that the more sensible approach is to try to ensure that Parliament has a role in endorsing guidelines. That means that if the public start to dislike the guidelines as they exist, they can look to Parliament to start to express concern, because Parliament is seized of the matter by having previously provided the endorsement. We can also envisage a role for the Select Committee, and the House should provide for the guidelines to be endorsed by affirmative resolution.

Such a formula could apply even if the form of the guidelines council that the hon. Member for Nottingham, North envisaged was not possible and it had to be altered in some way. I see no reason why that element could not remain.

With that in mind, I embark on this chapter on sentencing. I hope that we can achieve consensus. The amendment should command widespread support. If we are providing a statement of the purposes, it would be wise to include a reiteration of the role of the judiciary. That would reassure judges, as well as the public, that we are not about to usurp the judiciary's role.

As for the other matters, I look forward to the Minister's comments. We must not get too bogged down in the clause, or we shall not give proper consideration to subsequent clauses, which require a great deal of detailed scrutiny.

I want to speak to amendments Nos. 516 and 601. I wholly support the sentiment that

''Judges shall have discretion in the determination of all sentences.''

It is absolutely correct that no two cases can be the same. I say to anyone who may oppose the more general point that the hon. Member for Nottingham, North makes about the sentencing council that we do not have full judicial independence and discretion at present. That is an obvious point, but one worth making. Judges and magistrates are not simply allowed to look at any case, consider the maximum sentence for the offence and use their discretion. There

are huge amounts of guidance and many ways in which they are constrained. One way in which that constraint makes itself known is when people appeal sentences at the Court of Appeal.

In my constituency, the husband of Mrs. Smith of Long Hanborough was tragically killed in a road accident. The person driving the car had no licence and was uninsured, as was his passenger, and the court initially imposed a sentence of three years and nine months. That was cut on appeal to just two years, and under early release they were released after nine months. They were released straight after the Court of Appeal judgment. Mrs. Smith feels cheated. The purpose of making that point is to say that judges do not have total discretion, because the Court of Appeal in that case quickly overturned the Crown court's decision.

There are two logical positions that one can have on judicial discretion. One can either believe that Parliament should set the maximum sentences, or occasionally minimum sentences, and judges and magistrates should have total freedom within that, because only they are fully aware of the facts of the case, or one can hold that there should be sentencing guidelines that are accountable to somebody. At the moment we have the worst of all worlds. We do not have full judicial discretion. The Court of Appeal issues an awful lot of sentencing guidelines and practice, without proper scrutiny.

I advise non-specialist members of the Committee like me to read the judgment of the Lord Chief Justice in the burglary cases, Regina v. McInerney and Regina v. Keating, and see the level of detail that he goes into. He defines a standard burglary, and says that that involves theft of electrical goods, such as a television or a video, or theft of personal goods, such as jewellery. He goes on to detail aggravating and mitigating features. It is fascinating to read, but I totally disagree with it. I think that it is soft and pathetic, and that burglars should be given much greater sentences, although that is just my view. However, Parliament could quite easily have an input on the matter. A sentencing council such as that which the hon. Member for Nottingham, North described could do a fairer and more reasonable job than the Lord Chief Justice. I do not see why on earth Parliament should not have some role. We in the Committee should settle the key questions of how the guidelines will be set, who will oversee the process and how accountability can be ensured.

On the purposes of sentencing, and amendment No. 601, a couple of points are missing that the Minister can perhaps touch on, such as the prevention of crime. The clause refers to ''the reduction of crime''. For prolific offenders, however, the court should take into account giving the public a break from their offending behaviour.

I wonder whether that is not covered by subsection (1)(c), which refers to

''the protection of the public''.

I think that one could spell that out in a bit more detail, and that it should be about preventing crimes. I worked at the Home Office and I

remember some research that showed that the typical burglar carried out more than 20 burglaries a year. The Minister looks a bit doubtful—perhaps he will have to dig out the research. In a case such as burglary, I think that preventive detention could cut the crime rate.

Subsection (1)(a) refers to ''the punishment of offenders'', although it does not mention retribution. I do not mean that in the sense of wreaking revenge, but we should remember that in a free society we give up our right to take action when someone wrongs us, and vest that right in the state. That is what the criminal justice system does. If one's car is stolen and one knows who did it, one cannot go round the corner, get the car back off them and smack them over the head, because we live in a civilised society. One vests that right in the state, and the state must do the job properly. I suppose that the Minister could say, ''Well, that's wrapped up in the concept of the punishment of offenders,'' but I would be happier if something was said about the importance of public's having confidence in the criminal justice system.

The Bill says that the sentencing council must bear such matters in mind. However, when a court passes a sentence it should bear in mind not only the deterrent effect on the offender and others who might offend, the protection of the public, and the other things detailed in the clause, but public confidence in the criminal justice system. When a wrong is done and the individual cannot take action, they want to know that the state has carried out that function on their behalf properly. That is not said in the clause.

I support the amendment. My name is not in the list of its sponsors, but I certainly support it. I must apologise, because I did not have the opportunity to hear the opening remarks of the hon. Member for Nottingham, North. I was delayed at King's Cross because the tube station was closed because of alleged overcrowding. I am not sure what the exact problem was—it may have been a dress rehearsal for 17 February. None the less, I very much agree with the spirit of the amendment, which is a useful restatement of judicial discretion. I am very much in favour of giving judges discretion, because they hear the facts and must tailor sentences accordingly.

We should remember that judicial discretion is often exercised in the context of the guidelines issued by the Court of Appeal. Sentences passed by magistrates or judges—particularly Crown court judges—may be subject to an appeal to the Court of Appeal to see whether they fit in with the guidelines. In the first instance, however, it is important that we trust judges to hear the facts of the case and to tailor the sentence accordingly in the context of the guidelines.

There are sometimes important social reasons for tying the hands of judges and magistrates by fixing a minimum sentence, but that should be done sparingly. A good social case could be made particularly in relation to offences such as driving with excess alcohol, which carries a minimum disqualification of 12 months. There is an important social reason for that sentence, and it has been a success. Otherwise, however, I would be reluctant to tie the hands of

judges or magistrates. If we do, we run the risk of anomalies and injustices. The judge may hear all the facts of a case, and his decision may go either way. He may want to pass a custodial sentence but be unable to do so because of the guidelines. Equally, he may have to pass such a sentence even though he thinks it more severe than the needs of justice would require. We want to avoid judges throwing their hands in the air, saying, ''I've heard all the facts of the case, but Parliament requires me to do this.'' We must avoid tying their hands, but I am all for Parliament having an input through the parliamentary process and via the sentencing council and the guidelines. That is very important.

My hon. Friend the Member for Witney touched on the important issue of maintaining public confidence, which arose from comments about transparency in sentencing. One way to engender public confidence in the sentencing process is to have sentences that the public can trust and believe in, and for them to know what the sentence actually is.

I agree with much of what the hon. Member for Southwark, North and Bermondsey said, but he was in danger of facing in different directions at the same time on the question of honesty in sentencing. I agree that there is a strong case for more effective community sentences, and we usefully devote our time to ensuring that they are as effective as possible. However, if there is to be a mixture of, say, custodial and community sentences, let us have the courage to tell the public and not to dress it up as if it were simply a custodial sentence. Let us tell them the length of time that someone will serve in prison, what will happen under the community part of the sentence, why it was passed and what it is hoped to achieve.

I listened carefully to the hon. Gentleman, and I thought that he was facing in different directions at the same time, but I will happily give way to him if he wants to correct that impression.

I may not have put the case as well as I should have done. I accept what the hon. Gentleman says, but the question is what happens at the moment of sentence. Is someone told, ''You have a five-year sentence. Half will be spent in prison and the other half will be spent outside under these conditions''? That is the presumption at the moment. On the other hand, are they told, ''You will have two periods of punishment—one inside and one outside''? If we came to the view that it would be better to describe things differently, I would be happy to support that, but I do not think that there is a difference between us.

I would like the maximum amount of honesty at the point of sentencing so that the public and the court can be told what the sentence will be. We must leave no one in any doubt, and at all costs avoid the public being told that someone will go to prison for a certain length of time, only for him to come out after a much shorter time. Let us be accurate about what is happening.

Let me give the hon. Gentleman an example of what might have happened in the past. Someone might have received a sentence of six months' imprisonment under the regime that applied at one time. With the provisions for early release and early release through tagging combined, prisoners who were sentenced to six months were eligible to come out after six weeks and in many cases did so. It must have come as a surprise to the victim of an assault, for example, who had heard that his assailant had been sentenced to six months' imprisonment, to see him in the supermarket or the pub six weeks later.

My hon. Friend makes a good point. Only yesterday, I was at Wandsworth prison to discuss a safe ground campaign, which is about educating prisoners and helping them in their family relationships. The point was made to me that the programme is frequently halted when an offender is released on tag, even though he might be only halfway through it.

My hon. Friend makes another important point about the sort of problem that can arise. That, too, will destroy the confidence of the public when they know that the two regimes have not been combined effectively.

My hon. Friend has hit on an extremely important point about the public knowing what is happening. I should like to reinforce it by telling him that if the maximum sentence passable by a magistrate is six months, no one spends more than six weeks inside—subject to certain conditions.

My hon. Friend, who has more up-to-date and authoritative knowledge of sentencing than I do, confirms what I suspected. That was the case at one point and it sounds as though it still is. I conclude by inviting the Minister to deal with the issue. I understand that when a person is sentenced to six months, no one is told at the point of sentencing that they might come out on a tag after a shorter period, or that they will be released after six weeks. Can the Minister tell us whether a person who is sentenced to six months today will be eligible for release after six weeks on a combination of early release and tagging? Can he also tell us in how many cases that happens? From what my hon. Friend the Member for Woking says, it sounds as though it is common, if not invariably the case. Finally, regarding openness, can the Minister tell us what is said? Is any warning given to the public at the point of sentencing about what is likely to happen, or are they just told that the person has been sentenced to six months in prison?

There is not much between any of us. The one other consideration to which I hope that the hon. Gentleman will sign up is that we have to allow good behaviour in prison to count for something. Defendants should be told that they are to be imprisoned for a year but that, if they behave properly, they might be out after nine months. The public should know that at the time of sentence as well.

That is also important. I do not disagree with the hon. Gentleman. However, it does not apply in this case, because people are released after six weeks without having earned it. They might serve longer if they are particularly badly behaved, but there is no question of anyone earning it; it seems to come up with the rations.

I agree with many of the points that have been made about community sentences. I am strongly in favour of them as an alternative to custody; they rehabilitate people and give them a chance. However, we need to be open and tell the public what is happening. I hope that, through the amendments, we shall contribute to opening up the sentencing process and giving the public the information that they need in order to have confidence in the criminal justice system.

May I begin, like other hon. Members, by congratulating my hon. Friend the Member for Nottingham, North on his award, and on his speech? It set off what has been an outstanding debate, and showed us why he won the award. I join him in acknowledging the amount of expertise in every part of the Committee. There is not a morning when I do not come in and see lawyers to the left of me, lawyers to right of me. However, it is not just expertise that matters, but the experience that all hon. Members bring to our debates. A number of contributions have contained passion as well as insight. It is the way in which hon. Members of all parties apply their experience to the issues that makes it such a pleasure to be a member of the Committee.

This morning, that experience has been applied to debating the purposes of sentencing, and discussing the complex interrelationship between the society that experiences crime and the system that tries to deal with it. Opinions could be characterised as ranging from ''lock 'em up and throw away the key'' to the strong belief in redemption and rehabilitation. The debate makes the case for clause 126, and the principle that the purposes of sentencing should be set out in legislation. The contributions of my hon. Friends have drawn out an important distinction between the principles of sentencing, which are already covered—the hon. Member for Southwark, North and Bermondsey read out those in the 1991 Act—and the purposes of sentencing, which we are debating, and which are to have statutory expression for the first time.

The amendment refers to judges' discretion and the clause refers to any court having regard to the purposes. However, I cannot see any reference to the Sentencing Guidelines Council having to have any regard to the purposes; I should have thought that it would do.

The fact that they will be in statute will send a clear message. It is hard to conceive that the Sentencing Guidelines Council could do its job if it did not have regard to the purposes of sentencing that Parliament will have laid down in clause 126, if it is agreed. It covers four areas. The first is punishment, which is about calling people to account. I think that that covers the point made by the hon. Member for Witney. The second is the reduction of crime, which does include its prevention. It is couched in very

concentrated wording. I understand that other hon. Members would prefer it to be broken down into more categories, but I shall argue that it covers all the purposes of sentencing that one can conceive of and addresses the matter of deterrence. The hon. Member for Woking was right when he contrasted deterrence as it relates to the individual, and the general message of deterrence that a particular sentence might seek to convey, and the important issue of rehabilitation of offenders. That picks up the point made by the hon. Member for Southwark, North and Bermondsey about redemption and the capacity of people to change, in which we must all believe. The third is the protection of the public, and the fourth, the making of reparation by offenders.

Not to anticipate the debate, although it might assist its progress, I am happy to confirm that ''to persons affected'' does include both the individual who might be affected and the wider community. The clause is drafted with precisely that intention. We owe a debt of gratitude also to the hon. Member for Southwark, North and Bermondsey for reminding us where all of this comes from: the excellent report drawn up by John Halliday and his colleagues. I can tell those hon. Members who have not had a chance to look at it that it is well worth reading. It was the subject of extensive consultation. So, where does all this come from? A very thorough process.

A number of questions were raised about the purposes themselves. The hon. Member for Woking asked whether the clause was trying to change practice. It is trying to give the purposes of sentencing statutory expression for the first time. There is no order of priority. Four purposes are laid down in subsection (1) and it is, of course, for the court to apportion weight to each of the purposes in a particular case. As I said, the list covers all the purposes that any of us could think of. That point was ably made, as ever, by my hon. Friend the Member for Wellingborough. Despite the contributions that we have heard, no one has been able to suggest a purpose that is missing, but I am about to give way.

I detected, from a nod by the hon. Member for Wellingborough, that the question under subsection (1)(d), concerning reparation to the wider community as well as

''to persons affected by their offences'',

may be an example of something that has not been spelled out but could do with being spelled out. If so, the Minister may agree that we have not covered all the categories in paragraphs (a) to (d).

I hear the argument about the wider community, but paragraph (d), with its reference to persons affected, was clearly drafted with that in mind.

Can the Minister think of any situation in which the wider community could be affected by crime without any individual being affected at all?

My hon. Friend makes an extremely good point.

If I go and vandalise a public statue in a public square, the community, and not individuals,

will be affected. I simply highlight that. I do not want to get involved in an exercise in semantics. However, the argument reinforces the point that when one has laid down a series of prescriptive rules, there is a danger, although I accept that it is slight, that one will suddenly start to think of examples that fall outside those rules.

The court will have regard, as it must, to the purposes set out in the clause, the various principles governing sentencing, which are laid down in later clauses, and, as the hon. Member for Woking rightly pointed out, other circumstances. I therefore find it hard to see how the court, with all its powers and the discretion that it has, could fail to reach an appropriate sentence, although the hon. Gentleman acknowledged that there was a slight danger of that.

I am listening carefully to the Minister. May I assume that the answer to my basic question—whether the clause is intended to alter existing practice at all—is no?

In the end, the court will decide, for the reasons that I have just given in answer to the hon. Member for Beaconsfield. However, the clause clearly states the purposes of sentencing and tells the court that it must have regard to them in making decisions. Looking down the list of the purposes of sentencing—the hon. Member for Woking will have more experience of sentencing than anyone else in the Room—we find that they are indeed the considerations to which courts will have regard in taking decisions. However, the Government are firmly of the view that it is right and proper, and in the interests of clarity and understanding, which have been a feature of this debate, that the Bill should explicitly state what the purposes of sentencing are, so that they can be seen by the wider public.

In answer to the hon. Member for Wellingborough, it would be hard to adduce the particular persons affected by the theft of an osprey's egg.

To return to the point about proportionality, is there not a further purpose of sentencing—that of closure in the interests of justice? Has that not been the purpose of sentencing since biblical times—an eye for an eye and a tooth for a tooth? There must be an end to the sequence of events of which the crime was part. Sentencing provides that closure, and the hon. Member for Witney pointed out that the public must have given that right to the state and must see it through to the end.

I accept that point entirely, and that is clearly the purpose of subsection (1)(a). The court's passing sentence provides closure, and it will also take into account the purposes set out in the other paragraphs of subsection (1). The hon. Gentleman gave the example of the theft of an osprey's egg; that is an offence because it is in the wider interest of the community that rare bird life thrives.

Yes, but it does not affect persons.

I am not sure that I accept that. Persons—the community—have an interest in the survival of wildlife that we consider important; and we should call people to account for what they have done. One can think of some quite imaginative forms of reparation that someone who has offended in such circumstances could undertake. They could work to promote the interests of wildlife, for example.

The Minister has given an interesting answer, but would a better answer to the osprey question not be that one would be sentencing a person under subsection (1)(a) to punish him or under (1)(b) to reduce crime? It is difficult to believe, however, that one could repair the damage done to the osprey by sentencing.

I am always grateful to my hon. Friend for providing better answers than I because of his knowledge and expertise. His attention to the detail of the clause is an object lesson to us all. To reflect on the less than good answer that I gave, to ask someone to work in a bird sanctuary would be an extremely appropriate form of reparation, and that is what the clause provides for.

Let me take the Minister away from the specific to the general.

I shall be very grateful to the hon. Gentleman for it.

I am glad to be of help. If we agreed that it would be good to have purposes set out, which is the Minister's case, would he not accept that we should have the principles set out in the same legislation? We do not have that at present, but I would accept the Minister giving a list of purposes. The principles are set out nowhere in the Bill, although Halliday argues strongly that they should appear there.

The difference between the purposes and the principles is that the principles can be found in many other pieces of statute. Inasmuch as the hon. Gentleman is making a plea for codification, I hear what he says. The Bill, as we are discovering through these pleasant exchanges, is already long enough. The hon. Gentleman will have noticed, however, that principles are covered in the clauses that we are about to debate, in particular clauses 127 to 136. The hon. Member for Witney raised the issue of providing the public with a break from persistent offenders. Clause 127 does precisely that by placing a requirement on the court to take into account the persistence of offending when reaching a view about an appropriate sentence. I accept his argument entirely, and that is exactly the purpose of clause 127.

The hon. Member for Woking was absolutely right about the gap in the public's perception of sentencing. That was brought home to me by the BBC's crime day. I saw the sentencing exercise in the programme. In it a group of people was ranged around the room—judges, ex-offenders, police officers, the public and victims. From memory, with the exception of one case and given that it was not a representative exercise, it showed clearly that the judiciary were not out of step with the public on what was appropriate.

The hon. Gentleman has more experience of the matter, but it reinforces what my hon. Friend the Member for Nottingham, North said—that it is in everyone's interests that we should understand better how the system works. One theme that has run throughout our discussions on the Bill is that greater clarity and more common sense in the operation of the law—the Committee will know that I am particularly wedded to that term, because it explains the Government's thinking behind a number of changes—will help to build the confidence in the criminal justice system that we all definitely want.

The hon. Member for Hertsmere (Mr. Clappison) asked a specific question about six-month sentences; he wanted to know whether a person could be released after six weeks. For a six-month sentence, release will be automatic at three months. Home detention curfew is given at the discretion of the governor, and it is indeed the case that a person could get early release on home detention curfew after six weeks. However, that does not apply to all offenders. For instance, sex offenders, those who were previously involved in dealing drugs and previously violent offenders can be and are excluded by the discretion of the governor. That is how the system works, but I understand the point of the hon. Gentleman's question.

The Minister mentioned sex offenders; I think that they were originally eligible for early release through home detention curfew, but the Government changed their mind on that as a result of the fuss made about it by Opposition parties. The second part of my question is whether the court is told at the time of sentencing that that is apt to happen.

No; and I have received confirmation of that by way of a nod from the hon. Member for Woking. The hon. Member for Hertsmere raised an extremely important point; he also drew out the other subject that we have been debating, which is what constitutes a sentence. Effective community penalties and supervision run like a thread through the Halliday report and the clauses that we are about to debate, and it is important in relation to custody plus.

The great thing about custody plus is that it provides supervision for short-sentence prisoners who currently go to prison for a short time, but who, when they come out, miss the follow-up—the work of the probation service, continuing access to drug treatment, offending behaviour programmes and so on. We know from experience and from the statistics that those things have an effect and that they help reduce reoffending. It is important that we understand that a sentence can be a combination of those things, provided that they meet the purposes of sentencing.

It is important that we can demonstrate that those things make a difference, either separately or in combination, and that they help achieve the purposes of sentencing, particularly in reducing reoffending. If we can do that, we have a better chance of winning the argument with the public. If we can demonstrate that an effective community sentence, including some of the rigorous approaches that are currently being developed, protects the public by reducing crime as well as by making reparation, the public will be more willing to agree. If it helps to stop others becoming a victim at the hands of a particular offender, it makes sense to do it.

The Minister's answer to my hon. Friend the Member for Hertsmere was indeed right, save to say that on a six-month sentence, the defendant is told publicly that he will serve half of that sentence and be released on licence if he behaves properly. However, early release is never directed by the court.

Judges do have discretion in determining sentence. I understand the aim of the amendment, and I am happy to confirm for the record that judicial independence, including judicial discretion in sentencing, and subject to the framework of law laid down by Parliament, is indeed the bedrock on which our legal system is based.

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.