Lord Gill - Huge constitutional question raised over Sentencing Council proposals

From : http://www.scottish.parliament.uk/s3/committees/justice/or-09/ju09-1402.htm#C...

Lord Gill, the Lord Justice Clerk, raises some very important issues regarding the proposals contained in the Criminal Justice and Licensing (Scotland) Bill.

"Right Hon Lord Gill (Lord Justice Clerk): I am slightly troubled by the term "inconsistency". Forgive me for going back to a slightly earlier point, but it relates to the point that has just been raised with the Lord Justice General.

If the legislation sets out to achieve what is described as consistency, it seems essential that it should define what it means by consistency and inconsistency. The consultation paper started off by talking about inconsistency and then spoke about a perception of inconsistency, which is rather a different thing. It is not quite clear yet what the legislation seeks to achieve. There is no definition of consistency in the draft, and it seems to me that those who would form a sentencing council would find some difficulty in knowing exactly what they were trying to do unless the legislation gave them a clear definition by which to judge their own views and decisions.

That raises in a clear way the constitutional issue that underlies legislation. It is part of the constitution that it is for the appeal court to determine sentencing, except to the extent that legislation lays down what the sentence should be. To read the bill, one might think that it involved merely the creation of some quango but, in fact, there is a huge constitutional question underlying the bill. That is what troubles me."

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