I beg to move amendment No. 647, in

clause 137, page 77, line 23, leave out ''12 months'' and insert ''51 weeks''.

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

No. 612, in

clause 137, page 77, line 23, at end add

''but may pass consecutive sentences in relation to two either way offences each of up 12 months.''.

No. 613, in

clause 137, page 77, line 40, at end insert—

''(8) A district judge does not have power to impose imprisonment for more than 2 years in respect of any one offence but may pass consecutive sentences in relation to two or more either way offences each of up to two years.''.

No. 615, in

clause 138, page 78, line 4, leave out ''65 weeks'' and insert ''2 years''.

This is a simple amendment, the logic of which will, I hope, appeal to the Government. As the Minister and his officials know, the reason for

changing from 12 months to 51 weeks is to restrict the increased sentencing powers of magistrates to the imposition of sentences that are called custody plus sentences. Justice and others have made strong representations to me and, I am sure, to other hon. Members in favour of such a limitation, so that once 52 weeks—a year—is triggered, the case will move into the next league of offences.

Will the hon. Gentleman explain why he is so worried about giving magistrates the power to pass a sentence of a year or more when the people who receive such sentences will be out of prison after six months under the provisions for automatic release at halfway point of sentence, or even earlier under the early release scheme? Should we not trust our magistracy and give it the powers to pass sentences that will at least have some effect on those criminals who receive them and reassure victims that justice is being done locally?

Yes, we should trust our magistrates, and by and large the magistracy is well trusted. It is neither the hon. Gentleman nor I but the Government who have commissioned a report on sentencing that proposes that certain stages should have certain implications. I am trying to reflect other proposals that have been made. Magistrates have powers to impose non-custodial sentences, to impose a custodial sentence of up to six months or, if they do not think that their sentencing powers are sufficient, to send a case to the Crown court for sentence. One of the proposals in the package would replace the power to send up for sentence with a wider power to sentence for longer periods.

The hon. Gentleman may well be a supporter of that proposition, which would mean that if there was a choice about where the trial should take place, people would have some certainty. For example, they would know what the maximum sentence would be if they were to go before the magistrates, and they would not risk the worst of both worlds or be uncertain about what might happen. I understand and am supportive of that argument.

It is the general presumption that if the sentencing powers of magistrates are increased, they will send more people to prison. I have heard no one argue that that will not be the case. I am trying to put myself in the minds of the magistrates, and it seems likely that if they know that the maximum sentence that they can impose is 12 months or 51 weeks, they will more often go up to the maximum limit, just as they do now with the limit of six months, so we could all reasonably expect them to pass longer sentences more frequently.

Good.

The hon. Gentleman clearly considers that a good thing.

In some cases it might be.

Yes, that is so, which is why I said that I had no problem with the idea that magistrates should have greater sentencing powers. However, how

do we ensure that when people are sentenced, they, the community, the court, the people who read the local papers and the local community understand what the sentence means? I think that we are all signed up to the idea that we want that to be as clear as possible. It is perfectly reasonable to have a system that says, ''Your sentence, Mr. Benn,''—or ''Mr. Cameron,''—''will be 10 months, half of which will be served inside and half outside. There will be conditions attached to the period served outside, and if you break them, you will be liable to go back inside.'' That is clear and means—a point made earlier by the Minister—that non-custodial alternatives will be seen as sentences, as they clearly should be.

I think that we are also all signed up to the fact that there is a problem at the moment because the home detention curfew, on the principle of which we have supported the Government for the past five years, is not alluded to when the courts are carrying out sentencing. There is no discussion before the public, the defendant, the victims, the witnesses, the court reporter or anyone else that a sentence of 10 months may be reduced by half to five months, and the offender may be eligible for release even earlier. To pick up the point made by the hon. Member for Woking, it is important that we address the issue so that people understand that there may be an automatic move from custodial to non-custodial halfway through the sentence, and that good behaviour can reduce the sentence further. Everyone needs to know that that is the score.

As the hon. Member for Witney will know, prison governors say that they need such flexibility so that they can control their prison populations. Incentives are important for prisoners. I remember even from my very earliest discussions with prisoners that the three letters that they know best and use most are EDR, which stands for earliest date of release. I am sure that we have all had letters from constituents in prison, and it is clear that the date on the calendar after which they know that liberty can come is hugely important to them.

Given that we are to have sentences of more than six months, the amendment would ensure that prisoners could benefit from the Government's custody plus idea—it is a good idea—and that that would happen automatically for those who fell within the relevant range of punishment. I am not against magistrates having more power, but we must be careful when we legislate to give them that power that we do not end up with significant numbers of higher sentences. We must be careful to ensure that alternatives are in place.

If I may, I will return to another aspect of the issue on clause stand part. However, magistrates should have more power to give custodial sentences only when alternatives are in place. It would be a weakness to have the power to imprison but not to do other things.

Amendments Nos. 612, 613 and 615 were tabled by Conservative Members. They would clarify what happens when there are sentences for more than one offence, so that there would be no doubt about the total sentence. I hope that I might persuade even Conservative Members that it would be more accurate

and more helpful if the maximum period for which magistrates could sentence people was 51 weeks—that is, just under a year.

My hon. Friend the Member for Woking will speak to our amendments in detail, but I want to deal with one immediate point. It relates to reconciling the 12-month period of imprisonment in the clause with the 51weeks to which the schedule extends so many sentences. I would be grateful if the Minister could clarify why schedule 19, which deals with lengthening sentences, refers to 51 weeks throughout, when the clause refers to 12 months. That is slightly odd, and I would have thought that the two should match up, and indeed that that was a fundamental purpose of these sentencing provisions. Why does schedule 19 refer to 51 weeks, but the clause to 12 months?

I have no difficulty with the principle that we should extend the sentencing period. The issue was raised some time ago, and in the context of maintaining jury trial, in which I fundamentally believe, I have no difficulty with increasing magistrates' sentencing powers. I hope that that might somewhat reduce the number of cases that go to the Crown court. In my professional experience, numerous cases appear at the magistrates court and are committed to the Crown court, but the sentence that is finally imposed would be within the jurisdiction of the magistrates court. That has unnecessarily added greatly to the time and cost of the case. If this were to provide a further reassurance that magistrates courts could deal with such cases, it would be a good thing.

However, some of the points made by the hon. Member for Southwark, North and Bermondsey are relevant. We shall deal with the concepts of custody plus and custody minus. I had always understood that an increase in the jurisdiction of the magistrates courts would be matched by the introduction of custody plus and custody minus. However, a number of the things that the Government have said lead me to think that that is not now going to happen—at least, not immediately. I seek clarification—now that we are coming to the key issue of increasing magistrates' powers—as to how the increase in power and the operation of custody plus and custody minus will be reconciled, and how they will operate in tandem. If they cannot, the hon. Gentleman must be correct. The prison population will increase substantially, and that rise will take place at a time, as the Minister knows only too well, when it is already at a maximum, with no leeway for further increase. That brings some public policy considerations into play.

Nothing does more to bring the system of justice into disrepute than public perception. The point has been made that not only do people want to know about sentences that are passed, they want to understand what they mean in practice. They also need the reassurance that administrative requirements and convenience will not lead to those sentences being subverted. The main reason why sentences of imprisonment are subverted is that the Home Secretary is tapped on the shoulder by the director of the Prison Service and told that an impossible situation has been reached, and that some device or

mechanism has to be used to push people out of prison. The past 12 months have been littered with examples of that, and with ad hoc provisions and decisions. It has been suggested that the Lord Chief Justice has been given nudges and winks by the Home Secretary to alter sentencing guidelines suddenly.

It is all very well going through the system and starting with a general limit on magistrates courts' powers to impose imprisonment, which I greatly welcome. However, that is pointless unless the background framework is coherent and can be implemented. I hope that before we agree the clause the Minister will enlighten us as to how it will work, will reassure us about the difference between 51 weeks and 12 months, and will explain why both are used so freely in the Bill. I shall not discuss the amendments. I leave those to my hon. Friend the Member for Woking.

The amendments are essentially probing. However, might I ask the Minister whether he expects that, as a result of clause 137 and like clauses, there will be an increase in the prison population? Such an increase is always a matter of concern to Governments. What effect does he think that these measures will have?

By way of background—apart from noting, as we did the other day, that the maximum that people serve in prison when sentenced to six months in a magistrates court is six weeks, so long as they behave properly—I echo a point made by my hon. Friend the Member for Beaconsfield: when somebody is committed from the magistrates court to the Crown court for sentence, on the basis that the powers of the magistrates court are thought to be insufficient, it is a regular feature that a sentence is then passed that would have been available to the magistrates. Indeed, a non-custodial sentence may be passed. I have a feeling that a raft of cases in which, hitherto, magistrates have been sentencing to three and four months' custody will now result in sentences of nine and 10 months' custody. The argument is that if the magistrates are given the powers they will use them. I wonder what the Minister thinks about that. An increase in the prison population may result.

As a typical example, an average defendant aged 30 has 38 previous convictions, mainly for the shoplifting-type offence. He has a drugs background, but in this case the court will say to itself, ''We have tried to intervene before with a drug treatment and testing order. We have tried everything. The defendant has had X chances, and we have had enough. He's done too much thieving in Oxford street, so a custodial sentence is appropriate.'' The court's next question will be, ''What is the maximum sentence available? The person has pleaded guilty, so a discount must be given, but he was caught in the act, so the discount will be pretty small.''

The judge will say, ''Stand up, Smith. Five months.'' As night follows day, that will change. The judge will now say, ''Stand up, Smith. Ten months.''

The evidence shows that, at present, the reason why prisons are more full is not because

more people have been appearing before the courts but because the sentences imposed for the same offences have been getting longer. Any encouragement to give a longer sentence will inevitably have both those knock-on effects.

Yes, and I have often thought that one reason for the impact on our prison population over the years, and on the number of sentences passed, is that Defendant Smith first appeared in court in 1970, and he has had 36 further convictions. It is no wonder there are 60,000 persistent offenders every year in the country whose sentences are ratcheted up each time.

Like my hon. Friend the Member for Beaconsfield, I am content with the general mechanism to increase magistrates' sentencing power, so—neutrally—I ask the Minister to focus specifically on the effect that he thinks the clause will have on sentencing and on the prison population.

Amendment No. 612 deals with consecutive sentences. I ask the Minister whether it is the case that if two either way offences are before the court, it can impose 12-month sentences on each, to run consecutively. If a guilty plea is entered, in which case the discount must be given, is it the case that the court can sentence to eight, nine, 10 months consecutively for two offences? What is the maximum custodial sentence that the magistrates court can pass where the court is dealing with two either way offences? Hitherto, those offences could have resulted in consecutive sentences of up to six months.

Amendment No. 613 refers to the position of district judges. Its purpose is to ask the Minister a little about the Government's thinking on the former stipendiary magistrate. There was a time when there was a great deal of thinking in Government circles and elsewhere on the number of tiers of courts and the powers for different people. Whether this was right or wrong is not the issue, but it was mooted that particular sentencing powers should be given to a district judge that were separate from and heavier than those available to a magistrate sitting in the same court. Was that ever part of anybody's thinking, and is there a reason—there probably is—why it has not been included in the legislation?

Finally, amendment No. 615 relates to clause 138, in which the period of 65 weeks is mentioned. I prefer a reference to two years, simply because I cannot understand why 65 weeks is considered appropriate, although that is my fault, not the Government's, as I am sure that the whole thing was explained beautifully somewhere. I think that I have missed the point and would very much like the Minister to deal with that.

I think that there can be and will be a wider debate about sentencing at another stage. However, my probing amendments merely seek confirmation of what I believe to be the case regarding maximum sentences, and raise queries that I hope the Minister can answer.

The hon. Member for Southwark, North and Bermondsey asked about how the sentences

that magistrates will lay down under the new arrangements might increase. The clause gives them an increased power to impose a sentence of 12 months instead of only six months. I shall return to the interrelationship between that and custody plus later. The answer is: what would the Crown court have done in relation to that offender under the current arrangements? That is the comparator.

There is an issue about the phasing, on which my noble Friend the Lord Falconer was questioned when he appeared before the Home Affairs Committee. The straight and honest answer is that the Government are still giving consideration to the phasing, and he could not give a commitment that the extended magistrates' sentencing power would occur only once custody plus had been put in place. The Government think that that is right, for reasons to which Conservative Members alluded. Why should magistrates not be given that greater power and trusted to use it sensibly? The hon. Member for Woking talked about cases that have been passed up to the Crown court in which sentences are imposed that are wholly within the current sentencing power of magistrates, let alone those that will be available when the provisions come into play. In relation to custody plus, the issue concerns building the capacity of the probation service to deal with the supervision of short-sentence offenders, which has been widely welcomed, as it is a big gap in the current system. However, it will take time to build up that capacity as the investment goes in and people are trained.

Schedule 19, which the hon. Member for Beaconsfield asked about, is intended to bring all the offences therein listed within the scope of custody plus. In other words, some reoffences that currently carry a maximum of six months or less must be made to fit within the new framework. The Government decided to split that into two: schedule 19 changes some to 51, in order to fit within the custody plus framework; and schedule 18 makes others go down to a non-custodial penalty. That is how the exercise has been undertaken.

With schedule 19, we want magistrates to be able to sentence for all offences within the maximum of 51 weeks, and to use the new sentence structure of custody plus in full. However, we also want them to be able to sentence more extensively, to deal with either way offences. That is the reason for the increase to 12 months.

It might be helpful, in answer to the point that the hon. Member for Woking raised, to be clear what the arrangements in relation to magistrates' sentencing powers will be once the Bill is enacted. Under custody plus, magistrates will have the power to impose a custodial part of a sentence of a minimum of two weeks and a maximum of three months, followed by a period of supervision for a minimum of six months; and magistrates will have the power to sentence to 12 months custody exactly.

The answer to the hon. Gentleman's question is that, once the new arrangements are in place, there will be no sentences of four, five, six, seven, eight, nine, 10 or 11 months in custody, because custody plus will involve a minimum of two weeks in custody and a maximum of three months, followed by a period of

supervision. That is what custody plus will provides for, and magistrates will have the power of to impose a sentence of 12 months exactly.

Is it envisaged that magistrates will be able to pass a sentence of one day's imprisonment, deemed served? It often happens with overnight cases, when people are dealt with on the spot: they are held overnight and released at 10 am.

We may come to that on amendment No. 502, tabled by my hon. Friend the Member for Nottingham, North; if the hon. Gentleman is willing, we shall deal with it then.

Order. Given the absence of the hon. Member for Nottingham, North, who is taking part in a debate in Westminster Hall, that amendment may well not be moved.

I am grateful to you, Mr. Illsley, for pointing out that my hon. Friend is not with us at the moment—[Interruption.] My hon. Friend is attending to business elsewhere, but the hon. Member for Woking has just made it clear that we shall probably have an opportunity to deal with that point later. I will be happy to respond then.

The Minister has explained clearly how custody plus would work, with a maximum of effectively 51 weeks, but with the custodial period itself being much shorter, and with a 12-month maximum for either way offences. Until custody plus comes in, what range of sentencing options will be available to magistrates? I presume that they will range from one day to 12 months, and that sentences of five, six, seven, eight, nine, 10 and 11 months in custody will still be possible. Will he clarify that?

Yes, that will be the case. I was describing what will happen when custody plus comes into play. I shall try to give a complete explanation of the arrangements. The Bill also proposes that the magistrates should be able to impose two sentences of custody plus, but no more. That is why the Bill sets a limit to consecutive sentencing powers in the first instance of a total of 15 months, or 65 weeks, because we wish magistrates to become accustomed to their new sentencing powers. That provision will allow them to impose two consecutive sentences of custody plus, with a maximum of six months in custody. However, in clause 139, we are taking the power to increase those limits over time.

What will happen under the Government's current proposals if the magistrates do not exercise the custody plus option, but instead go for the 12 months imprisonment option? What would that mean in practice for the defendant? How is it possible to appear fair if the person who is thought to deserve 51 weeks or 11 months or some such period gets three months inside and then continuing supervision outside, whereas the person who deserves just a fraction more is dealt with under an entirely different regime? People will find it difficult to understand what happens in court, and it will be unhelpful to magistrates. It also suggests massive unfairness, and I can see many cases going to appeal on the fairness of the sentence compared with many other sentences passed by the same court.

I hear what the hon. Gentleman says, but we must trust magistrates when exercising the new powers—and I agree with the point made by the hon. Member for Witney in his intervention—to use them effectively. No doubt, they will wish to reflect on the hon. Gentleman's point when all the new arrangements are in place. Custody plus, which has been widely welcomed, will provide a huge additional benefit: provision for supervision. That is the great weakness of the present short sentence structure, as everybody acknowledges.

I recognise that they were probing amendments. We do not wish to limit the sentencing power of magistrates to just 51 weeks as proposed in amendment No. 647. That would fit awkwardly into the new framework, in which the minimum sentence of custody plus that can be imposed is 28 weeks, made up of the custodial and the supervisory elements. We want magistrates to make full use of the new sentence up to the limit of 51 weeks in addition to the 12 months in the clause.

We know what custody plus means. Will the Minister tell us what happens under the new regime if the sentence is one of 12 months? What will that mean in practice?

The answer is that it is half and half: half will be served in custody and half not. It would also be subject to the provisions of home detention curfew, to which some people will be entitled and others not, depending on the risk assessment. That is how it will work.

I think that the amendment No. 613 was a probing amendment. I am sure that the hon. Member for Woking recognises that a separate sentencing jurisdiction would create difficulties for allocation and listing mechanisms. It is more logical and practical that sentencing powers reside with a court and not with a judge. It would be very difficult for a lay tribunal, the maximum sentencing powers of which would be limited to 12 months, to assess whether a case warrants two years in custody or more. It follows that only a district judge could ascertain whether he or she could try a borderline case or whether it should go to the Crown court. There is a danger that the amendment would create a gap between the powers of district judges and the lay magistracy, and that could create tension between the two. Indeed, lay magistrates could see it as an attempt, in the long term, to replace them with a professional magistracy. That is clearly not the intention.

Technically, I understand the Minister's answer. I understand the argument for saying that we will give two types of custodial opportunities to magistrates: an under-12-month type and a 12-month type. However, the disadvantages significantly outweigh the advantages. A better regime would be to allow magistrates to sentence up to 51 weeks, with custody plus applying. However, we might need to look at whether three months' imprisonment with the rest of the sentence being served under supervision in the community is the right balance. We could be flexible. Alternatively, we might

give the magistrates the power to sentence up to 12 months and keep the custody plus regime to run up to and including a sentence of 12 months. In that case, the traditional sentencing would kick in at 12 months and a day. Everybody would understand that if they are given 12 months or less, they will get custody plus, but if they get more than a year, they will get something different.

That sounds as if it would be much clearer for the magistrate, the defendant and the public reading the paper than what is proposed.

Has the hon. Gentleman noticed that the Minister has not answered two of my questions? The first was whether it would be possible for a magistrates court, under the provisions, to pass a sentence of 12 months plus 12 months consecutively. The second concerned the effect on the prison population—an issue that has not been addressed yet.

I think that the Minister answered indirectly by saying that the total would be 65 weeks, or 15 months.

I apologise for my omission. It would not be possible under the arrangements for magistrates to impose two consecutive sentences of 12 months, but it would be possible to combine two sentences of custody plus as I described.

I presume that the Minister did not deal with the other, much bigger, matter of overcrowding in prisons because we shall return to it when we finish dealing with the amendments to clause 137. I share the Minister's view, based on the experience of the Home Office and prison governors, that in the past short sentences have often, if not almost invariably, been useless. The pattern for people given such sentences was custody without treatment, education or any other regime, then outside—they could disappear. I think that we can all agree about that. Prison governors whom I have met have all strongly assured me of that, and have urged change.

The benefit of prison inevitably diminishes the more overcrowded the prisons get. The director general, to his credit, has made that abundantly clear. He is not arguing from a political standpoint. He sees, day in, day out, what is happening. With two or sometimes three to a cell, and without the means to provide the amount of education that is desirable, there is reduced rehabilitation. People come out of prison much more likely to reoffend.

The blunt truth is that the prison estate is currently overcrowded. We could decide to go down the road of building more and more prisons, but they do not come on stream in two minutes. Even if it were decided to use a lot of boats around the shores, they would not come on stream in two minutes. We need to consider, in any case, whether it would be wise. We already have

the largest prison population in western Europe. I stand to be corrected on that, but that is my impression. Other countries appear to have been highly successful in going in the other direction.

The instance of that trend of which I was most recently reminded was Finland. I saw an item on ''Newsnight'', I think, about Finland's plan, in recent years, to reduce prison sentences significantly and to concentrate far more on rehabilitation, work, training and other things. It is said that the approach has been highly successful, with crime rates coming down considerably. Of course, it is not automatic that what happens in one country would happen in another, but we must be careful that we do not pass legislation that will both send confusing signals and result in many more people being sent to prison simply because magistrates reason, ''Oh well, this is the maximum tariff; we used to give a maximum sentence of six months, and we shall now give the maximum of a year.''

I take the hon. Gentleman's point. Also, if custody plus is not in operation, sentences of seven, eight, nine, 10 and 11 months will inevitably be routinely imposed by magistrates. They, being unable to impose custody plus—which, as described by the Minister, is completely different in its function—will want to impose a sentence that is an increase on their current limit of six months, and to try to reflect what custody plus might do if it included both the custody and the community components. I fear a great crisis in the short term.

I agree. I do not think that the Bill will get through Parliament if the proposal is advanced without the bringing into operation of the custody plus regime. The two are inextricably linked with respect to sentencing. We shall return to the issue, but so that we may regroup and rally even more troops to the logical cause, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No.614, in

clause 137, page 77, line 40, at end insert—

'(9) A magistrates' court, if satisfied that failure to pay a fine or part thereof is due to wilful refusal or culpable neglect, may pass a custodial sentence of up to 12 months on a fine defaulter.'.

This is a serious and significant amendment. I hope that the Minister will use the opportunity to deal with the issue raised earlier, regarding whether it will be possible to pass a sentence of one day, deemed served. I remind him that it is regularly used as a very quick way of disposing of matters.

The amendment deals with the thorny issue—

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.