The 1994 Act received Royal Assent and was relatively unscathed by the resistance in Parliament. However, the 1997 Act was significantly watered down by a combination of the political process and the timing of an upcoming General Election. This chapter will finish by discussing how the 1997 Act was overruled by adherents to other dispositions, who had the political acumen and necessary constitutional-legal powers to do so. This exemplifies the ongoing political competition between different dispositions within the legislative arena on penal policy, which has not been acknowledged by the punitive turn thesis.
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3.8.1 Causal power
This section is split into two; first, how the timing of the General Election (to be held in March 1997) prevented Labour from resisting Conservative’s crime control approach and second, how this timing eventually disrupted the dominant agenda in implementing certain policy outcomes.
i. Labour’s silence
Labour’s lack of criticism of the 1997 Bill empowered Howard’s agenda. With an upcoming General Election, the next year, Labour was aware that rejections of Howard’s policies could threaten their claim to be the new party of law and order. Howard made this known during a debate in the House of Commons on his sentencing proposals (HC debate, 19th June 1996). Howard suggested reasons for Blair’s uncharacteristic silence on the issue:
“As Labour is root and branch opposed to my proposals, why does the hon. Member for Blackburn [Blair] find it so hard to echo that aggressive rhetoric in the House? Why does he confine himself to such weasel words? I will tell the House why the hon. Gentleman has thus far been so muted—because he is under orders from the Leader of the Opposition to avoid any headline saying "Labour opposes tough action on crime". I serve notice on the hon. Gentleman that his tactics are transparent and will fail.”
Labour’s unwillingness to oppose the Bill was reinforced by Alun Michael, Labour MP, confirming it in the Committee stages; “An astonishing U-turn by the Opposition was propounded this morning [by Lord Burton] pointing out the huge change in the Opposition’s attitude to minimum sentences” (Alun Michael, MP, Standing Committee A debate, 21st November 1996). The quietness of the Labour party meant that most opposition was left up to smaller parties including Plaid Cymru and the Liberal Democrats (see below).
ii. Resistance of a ‘punitive’ agenda
The process of bringing about legislative change and the powers of both the House of Commons and House of Lords meant that members of the House of Lords had the opportunity to influence the Bill. On 23rd May 1996, Lord Taylor initiated an attack on the Bill. He showed his disagreement for the Bill, highlighting how mandatory sentencing impinged on judicial discretion and which would involve a denial of justice. It is not known what happened between then and the second reading of the Bill, but when introduced in the House of Commons for
104 second reading, the White Papers ‘genuinely exceptional circumstances’ had been changed to just ‘exceptional circumstances’, thus widening the power for judges to ignore the clause in what they deemed to be exceptional circumstances (HC debate, 4th November 1996). These changes had made the Bill acceptable for the Lord Chancellor, Lord Mackay of Clashfern. In an interview with The Times, he said that the Bill was satisfactory and that it “enables them to deal justly with particular cases” (Gibb, 1996). This was made explicit by Jack Straw in a debate at the House of Commons the day that the white paper was passed:
“So, by December, [Howard] had to concede, in an interview in The Law Society's Gazette, that the answer to these drug dealers and burglars would not be as simple as that which he had presented to the Tory party conference, and there would be an escape clause. The clarion call about time and crime had by then become, "If you don't want the time, don't do the crime—save where the courts exercise a discretion to waive the minimum sentences in exceptional cases” (HC Debate, 19th June 1996).
When it reached the House of Lords in January 1997, Lord Bingham gave a speech which was to illustrate the magnitude of the Lords disdain for the Bill. This is reflected on in the section above (3.7.1) and demonstrates how a just desert disposition was inherently adhered to in the House of Lords. Part One of the Bill was amended according to just deserts, with Lord Bingham testing the Bill based on four propositions, one being ‘will it be just?’
During the Committee stage, there was disdain for the Bill by Elfyn Llwyd for Plaid Cymru, who was against mandatory minimum sentences due to the nature of different circumstances of an offence. However, his attempts at increasing the influence that ‘exceptional circumstances’ could have on sentencing in individual cases fell on deaf ears and Ivan Lawrence, Conservative MP argued that amendments of that nature would “undermine the purpose of the Bill” (Standing Committee A, 19th November 1996). This battle continued in the last debate in the House of Commons, when Llwyd wanted to apply the ‘interests of justice’ provision to all mandatory penalties (HC debate, 15th January 1997). This opposition was effective in forcing the government to insert ‘exceptional circumstances’ into the 1997 Act, which would provide the sentence with what was effectively a ‘get out’ clause during individual cases in practice.
105 During February and March 1997, the House of Lords considered the Bill in committee over five days. Relevant to this study was the amendment moved by Lord McIntosh on 13 February, which gave the courts some discretion on mandatory sentences. For consideration of life sentences, the amendment included the term ‘exceptional circumstances’ as justification for not imposing a life sentence. In the case of mandatory fixed-term sentences, the amendment was a requirement by the court to have regard to the specific circumstances that would make the mandatory sentence ‘unjust in all the circumstances’. Howard was dependent on Labour supporting the rejection of these amendments when it came back to the House of Commons (Travis, 1997a). However, Labour agreed to support the amendments (The Guardian, 1997).
General Election
During this battle, the timing of the General Election created huge time pressure on Howard to get the Bill passed through as legislation. With suspicion that the Lords’ amendment would be reversed in the House of Commons, the Bill was kept in Report stage for longer by the Liberal Democrat Peers (HL debate, 18th March 1997). Thus, although the General Election had provided ‘standing conditions’ to empower a punitive disposition due to the lack of resistance from the Labour party (which only went so far), the House of Lords and the process of bringing about legislative change created significant disruption, which forced Howard to accept the changes.
Howard’s frustrations over the Lords’ amendments were expressed in a debate in the House of Commons shortly after the amendment had prevailed, when he argued how the “Lords' amendments drive a coach and horses through the provisions of the Bill that deal with burglars and drug dealers... [They] would allow the present pattern of sentencing broadly to continue” (HC debate, 19 March 1997).
Evidence for the General Election being instrumental in creating the standing conditions for the 1997 Act is found during an interview with Howard by Jones and Newburn (2007:102):
"I saw exceptional circumstances as really meaning exceptional circumstances and I would have limited them, required the judge to give reasons and all that sort of stuff. Now, that was made into a bloody great loophole by what Labour did in the run-up to the 1997 election. The answer to one of your questions - would I have done it differently if the election hadn't
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been imminent - yes, bloody sure I would have done. But I didn't have time. When an election is imminent, you have to make a judgement. And in the end I had to choose between allowing legislation to fall and allowing these changes".
Therefore, the process of a Bill and the ‘standing conditions’ of the penal policymaking process disrupted a ‘punitive’ disposition that was evidenced in the original 1997 Bill. This demonstrates the complexities of decision-making processes in the legislative arena, which the punitive turn thesis does not account for.
Existing legislation
Although it is not in the remit of the study (which focuses on political competition within the legislative arena), it is important to note that the negotiation between dispositional powers continued after the Act had been implemented. As highlighted by Thomas (1998), the provisions did not work within the remit of existing legislation, ironically the 1991 Act which it had attempted to replace. As described above, the phrasing of ‘unjust in all circumstances’ gave judges more discretion in individual cases than intended by Howard and the legislation could effectively be ignored. In his analysis of the 1997 Act, Thomas (1998) gives several examples of cases where the protective sentencing provisions contained in Section 2(2)(b) of the Criminal Justice Act 1991 prevailed over the automatic life sentences of the CSA (see Curry and Taylor CLR 65, 1997 and Hodgson case relating to discretionary life sentencing in Thomas, 1998). Also, Thomas (1998) emphasises the history of indeterminate sentencing in the form of discretionary life sentences since 1948, an established framework which automatic life sentences did little to change. Thus, existing criteria acted as a standing condition of causal power for other dispositional powers, which a punitive dispositional power could not compete with.
Labour won the General Election in May 1997. Although they implemented the relevant sections of the Act (see HC debate, 30th July 1997 for mandatory sentences for drug dealers being postponed until 1999 due to prison resources), they also formulated other Acts of Parliament which would restrict the use of the 1997 Act even further. The Human Rights Act 1998 came into effect in 2000, which provided the standing conditions to weaken the influence of a punitive disposition further, as it gave the Lord Chief Justice, Lord Woolf, the power to reinterpret and widen the meaning of exceptional circumstances in the automatic 2 strikes
107 clause. The meaning of ‘exceptional circumstances’ was widened to take into consideration if the offender was deemed a risk to the public – if they were not then a life sentence was not passed (Cavadino & Dignan, 2007). These changes resulted in the Act moving further away from the framework that was originally intended in the 1997 Bill and demonstrates how the Act was a product of a series of negotiations and compromises between various parties during the last stages of the Conservative government.