Sentencing Guidelines (Pre-sentence Reports) Bill
Tuesday 22nd April 2025
(1 week, 3 days ago)
Commons ChamberSentencing Guidelines (Pre-sentence Reports) Bill 2024-26 Read Hansard Text Watch Debate Read Debate Ministerial Extracts
The Lord Chancellor and Secretary of State for Justice (Shabana Mahmood)
I beg to move, That the Bill be now read a Second time.
When I spoke in this House on 1 April, I set out the Government’s intention to introduce emergency legislation, because I believe that our justice system must be above all else fair, and that, standing before a judge, we are all equal, no matter the colour of our skin or the question of our faith. Given the existential nature of this matter for our justice system, I was clear that we would move at pace to change the law. The Sentencing Guidelines (Pre-sentence Reports) Bill was introduced that same day. With Second Reading taking place just three weeks later, we are forging ahead with plans to legislate as quickly as possible.
Before I set out the contents of the Bill, it bears repeating how we came to be in the current situation and why expedited legislation is necessary. In the last Parliament, the Sentencing Council put forward revised guidelines on the imposition of community and custodial sentences. I should note that during a statutory consultation they were welcomed by the last Conservative Government in no uncertain terms. The shadow Transport Secretary, the hon. Member for Orpington (Gareth Bacon), who was a Justice Minister at the time, should be able to furnish his colleagues with the details, but as he is absent today, I will do so.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
Can the right hon. Lady clarify whether the guidelines proposed under the previous Government were the same as those with which she is dealing now, or did they differ—and if they differed, how did they differ?
Shabana Mahmood
They did not differ in any substantial way. All the guidelines, in so far as they concern issues relating to race, religion, culture or belief, are exactly the same as those to which the Justice Minister responded under the Conservative Administration. Hiding behind that, I am afraid, shows a failure to reckon with the Opposition’s own track record, which has become quite a hallmark of theirs in recent weeks and months.
These guidelines help judges, when sentencing an offender, to determine whether to impose a community order or a custodial sentence, providing guidance on the thresholds for disposals of this type. In the process of deciding which threshold has been met, judges are required by law to obtain a pre-sentence report, except in circumstances where they consider such a report to be unnecessary. The reports are used to give the courts more context of the offending behaviour in a given case, and set out any factors that should be considered as part of the sentencing process. As I said to the House on 1 April, generally speaking I am in favour of the use of pre-sentence reports, and in fact I have recently freed up capacity in the Probation Service precisely so that it has more time to produce reports of this type.
Sir John Hayes (South Holland and The Deepings) (Con)
The chairman of the Sentencing Council has argued that the sentence should be tailored to the offender, but my constituents—and, I suspect, those of the Secretary of State—think that the sentence should be tailored to the offence and its effect on the victim. That is what counts, not the background, circumstances, history or origins of the offender.
Shabana Mahmood
The purpose of the pre-sentence reports, used properly, is to provide the court with the full context of the offending behaviour. That enables the court to ensure that when it imposes a custodial sentence it will be successful and capable of being delivered in respect of that offender, or else a community sentence should be imposed instead. It is a useful mechanism that judges have at their disposal. We would expect it to be used in all cases except when the courts consider it unnecessary because they have all the information. Because I consider pre-sentence reports to be so important in giving the courts all the information that they need to pass the right sentence for the offender who is before them, I have specifically freed up capacity in the Probation Service so that it can do more work of this type. However, the updated guidelines specifically encourage judges to request them for some offenders and not others, stipulating circumstances in which a pre-sentence report would “normally be considered necessary”. That is the bit that I am seeking to change.
Sir Julian Lewis (New Forest East) (Con)
The right hon. Lady has just said something very important: namely, that she would normally expect a pre-sentence report to be given in all, or at least almost all, cases. I hope that is her position, because what seems unfair to me is that a pre-sentence report, which presumably enables people to present arguments in mitigation, should be available to some people who have been convicted of a crime but not to others. Surely it should be available either to everyone or to no one, because everyone’s individual circumstances deserve the same degree of consideration.
Shabana Mahmood
The right hon. Gentleman is absolutely right. In fact, we fully support section 30 of the Sentencing Act 2020—the sentencing code—which makes it clear that a court must obtain a pre-sentence report unless it considers it unnecessary to do so. That would be in cases where judges consider that they already have at their disposal the facts that will enable them to make a determination of the correct sentence for any particular offender. I think that the Sentencing Council got things right in the paragraph of the current guidelines that comes before the one that is the subject of the debate and the Bill, which states:
“PSRs are necessary in all cases that would benefit from an assessment of one or more of the following: the offender’s dangerousness and risk of harm, the nature and causes of the offender’s behaviour, the offender’s personal circumstances and any factors that may be helpful to the court in considering the offender’s suitability for different sentences or requirements.”
That covers all the areas in which we would normally consider PSRs to be necessary, and I would like them to be used more extensively. Indeed, I would like them to be the norm in all cases, because I think they offer important information to people who are passing sentence—unless, of course, it is unnecessary because judges have already been furnished with all the details, having heard the whole of the case that has been taking place before them.
Sir Jeremy Wright (Kenilworth and Southam) (Con)
The Lord Chancellor has just given us, very helpfully, the list of matters that might be relevantly considered in a pre-sentence report. As she has said, however, one of the items on that list is “personal circumstances”, and that is what the Bill will remove from the Sentencing Council’s discretion. May I ask her why she has not used in the Bill the language that is included in the explanatory notes? Paragraph 8 states that the Bill will
“prevent differential treatment… It does this by preventing the creation of a presumption regarding whether a pre-sentence report should be obtained based on an offender’s membership of a particular demographic cohort”.
That strikes me as a much narrower exclusion, and perhaps one better targeted at the problem that the Lord Chancellor has, in my view, rightly identified.
Shabana Mahmood
The right hon. and learned Gentleman is right. That is why we have offered the additional context in the explanatory notes. Personal characteristics and personal circumstances have, over the years, been elided in different court judgments, and the different definitions of the two have sometimes slipped. I wanted to make it clear in the Bill that we are constraining the Sentencing Council’s ability to create guidance for PSRs in relation to personal characteristics. We refer in the Bill to race, religion, culture and belief, specifically to ensure that the Sentencing Council understands that we are targeting this part of the offending section of the imposition guideline. It will then have its own interpretation of how personal circumstances and personal characteristics should apply. I would expect this to be analogous to protected characteristics in the Equality Act 2010, in terms of the way in which the courts are likely to approach the question of what a personal characteristic is for the purpose of the Bill.
However, I wanted to make the intention behind the Bill very clear to the Sentencing Council, and to everyone else. It is tightly focused on the offending section of the imposition guideline and leaves the wider question of personal circumstances untouched. As I will explain later in my speech, there is helpful Court of Appeal guidance on circumstances and on other occasions on which a PSR should normally be required, and nothing in the Bill will affect the Court of Appeal precedents that have already been set.
Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)
Is the Lord Chancellor aware that the Sentencing Council guidelines, and indeed the Bill, turn on issues that some of us have campaigned on for decades? I think that there would be concern if the Bill undermined the independence of the judiciary.
Shabana Mahmood
It certainly does not undermine the independence of the judiciary. There is a long tradition of campaigners, including my right hon. Friend, who have a lengthy track record of campaigning on issues relating to disparities within the criminal justice system and, indeed, across wider society. In so far as those disparities relate to the criminal justice system, my strong view is that they are matters of policy.
Parliament is the proper place for that policy to be debated, and Parliament is the proper place for us to agree on what is the best mechanism to deal with those problems. It is not within the purview of the Sentencing Council, because this is a matter of policy. Judges apply the laws that are passed by this House; that is their correct and proper function. I will always uphold their independence in that regard and will never interfere with it, but this turns on a matter of policy. It is right for the Government of the day to seek a policy response to this issue, and it is right for it to be debated and, ultimately, legislated for in the House.
Jim Shannon (Strangford) (DUP)
I thank the Lord Chancellor for opening the debate, and for her answers to the questions so far. I think every one of us believes that the foundational principle that justice is blind must be adhered to in every way, but we live in an age of ever-changing political correctness, which, regardless of whether we like it or not, invades Parliament and our lives.
I am very much in favour of what the Lord Chancellor has said about race and faith. As a person of faith, I want to make sure that race and faith can never be mitigating or aggravating factors when it comes to justice. Given the lives that we live, the world that we live in, and all the things that impact on us daily and in this House as MPs, can the Lord Chancellor confirm that faith, justice and religion will always be preserved in the way that they should be?
Shabana Mahmood
For me, one of the most moving parts of the parliamentary day is when the day starts with prayers. Those are Christian prayers, and I am of the Muslim faith, but I always find it moving to be part of them and to hear them. They remind us that we all belong to a country with a long heritage, which is steeped in faith. The source code for much of the law of England and Wales is the Bible. The hon. Gentleman makes some broader points on the issue of faith and how important it is, and I suspect that he and I have a lot in common in that regard. There must never be differential treatment before the law of our land, and before any court, on the basis of faith.
Mr Jonathan Brash (Hartlepool) (Lab)
I welcome the Lord Chancellor’s point about parliamentary sovereignty and that fact that policy must be determined by this place. I think many Members from across the House will have been quite shocked by the response of the Sentencing Council to her letter when she asked it to consider the guidelines again. Does she agree that if this place continues to butt heads with the Sentencing Council over guidelines like these, maybe the best thing to do is abolish the Sentencing Council?
Shabana Mahmood
I have had constructive conversations with the Sentencing Council, and I have made it very clear that I do not really do personal. I certainly would not do it in relation to the judiciary, whose independence I uphold and whose security I am ultimately responsible for. I take those responsibilities very seriously. I swore an oath on my holy book, and that means a huge amount to me. There is a clear difference here about where the line is drawn between matters of policy and matters that are correctly within the purview of the judiciary, which is how the law should be applied in the cases that they hear. I am simply making it very clear that this is policy and is for this place to determine, but as I will come to later in my speech, this situation has highlighted that there is potentially a democratic deficit here. That is why I am reviewing the wider roles and powers of the Sentencing Council, and will legislate in upcoming legislation if necessary. I will now make more progress with my speech and give way to other colleagues later if people wish to intervene again.
The updated guidelines specifically encouraged judges to request pre-sentence reports for some offenders and not for others, stipulating the circumstances in which a pre-sentence report would “normally be considered necessary”. This included cases involving offenders from ethnic, cultural or faith minorities. In other words, a pre-sentence report would normally be considered necessary for a black offender or a Muslim one, but not necessarily if an offender is Christian or white, and we must be clear about what that means. By singling out one group over another, all may be equal but some are more equal than others. We must also be honest about the impact that this could have. Equipped with more information about one offender than another, the court may be less likely to send that offender to prison. I therefore consider the guidance to be a clear example of differential treatment. As such, it risks undermining public confidence in a justice system that is built on the idea of equality before the law.
Sir Ashley Fox (Bridgwater) (Con)
Given that the Sentencing Council refused the Lord Chancellor’s first invitation to rewrite its guidance, is she confident that the limited nature of this Bill is sufficient? Would she not be wiser to take a broader power to ensure that in future all sentencing guidance has an affirmative vote in this place?
Shabana Mahmood
It is right that, moving at pace, I have sought to have a targeted Bill that deals with this particular imposition guideline. I have made it very clear that I am conducting a wider review of the role and powers of the Sentencing Council. If we need to legislate further—maybe in the way that the hon. Gentleman suggests, although other mechanisms are also potentially available—I will do so. I am not ruling out further legislation—in fact, it is very much on the table—but it is right that we are moving quickly in order to deal with the problems that could be caused by the guidelines coming into force, and that I have taken targeted action in this short but focused Bill.
As I told the House a few weeks ago, I had several discussions with the Sentencing Council in the time leading up to 1 April, when the updated guidelines were due to come into force. I reiterate my gratitude to the council’s chair, Lord Justice William Davis, for engaging with me on this issue and for ultimately making the right call by pausing the guidelines while Parliament has its say. I should say again that I have no doubt whatsoever about the noble intentions behind the proposed changes, because I understand the problem that the Sentencing Council was attempting to address. Racial inequalities exist in our justice system and are evident in the sentencing disparities between offenders from different backgrounds, but as the Sentencing Council acknowledges, the reasons for this are unclear. Addressing inequalities in the justice system is something that this Government take very seriously, and we are determined to increase confidence in its outcomes, which is why we are working with the judiciary to make the system more representative of the public it serves.
I have also commissioned a review of the data that my Department holds on disparities in the justice system in order to better understand the drivers of the problem, but although I agree with the Sentencing Council’s diagnosis, I believe it has prescribed the wrong cure. Going ahead with the new guidelines would have been an extraordinary step to take. It would have been extraordinary because of what it puts at risk: the very foundations of our justice system, which was built on equality before the law. The unintended consequences would have been considerable, because the idea that we improve things for people in this country who look like me by telling the public that we will be given favourable treatment is not just wrong, but dangerous. We are all safer in this country when everyone knows we are treated the same. If we sacrifice that, even in pursuit of a noble ideal such as equality, we risk bringing the whole edifice crashing to the ground.
I know there are disagreements in this House with regard to the correct policy to pursue, not least between the shadow Secretary of State for Justice, who opposes the guidelines, and the shadow Transport Secretary, whose support for them I have noted already—though I suppose that does assume that the shadow Secretary of State for Justice really is who he shows himself to be today. I must admit that I have begun to question whether his principles are set or really of no fixed abode. After all, he did pose as a Cameroon centrist for so many years, and only recently became his party’s populist flag bearer. It is enough to make me wonder whether he is, in fact, a Marxist—but one of the Groucho variety. “These are my principles,” he says, and if you do not like them, he has others.
Regardless of our positions on this question of policy, one thing is clear: this is a question of policy. How the state addresses an issue that is systemic, complex and of unclear origin is a question of what the law should be, not how the law should be applied. Let me be clear about that distinction: Parliament sets the laws and the judiciary determine how they are applied, and they must be defended as they do so. I will always defend judicial independence, and as I said earlier, I swore an oath to do so when I became the Lord Chancellor. Given the shadow Lord Chancellor’s recent diatribes, including just hours ago in this place, he may want to acquaint himself with that oath, if he intends ever succeeding me in this position, although I am assuming that it is my job he wants, not that of the Leader of the Opposition.
James Wild (North West Norfolk) (Con)
I think the Lord Chancellor just said that the approach to the guidelines taken by the Sentencing Council puts the foundation of the justice system at risk. Given that, how can she have confidence in a Sentencing Council that takes such an approach?
Shabana Mahmood
I have engaged constructively with the Sentencing Council and will continue to do so, and I am in the process of legislating to prevent this imposition guideline from ever coming into force. It has currently been paused, and I think that was the right step for the Sentencing Council to take. I am conducting a wider review of the roles and powers of the Sentencing Council, and it is right that I take a bit more time to think carefully about that, about what we may or may not want it to do, and about how we may right the democratic deficit that has been uncovered. I think my approach to the Sentencing Council is very clear from the action I am taking.
Sir Julian Lewis
I do not think anyone is questioning the firm action the Lord Chancellor is taking. The point my hon. Friend the Member for North West Norfolk (James Wild) made is: why should it be necessary for her to take that action? Surely, if the Sentencing Council cannot see the distinction she makes between its proper role and Parliament’s proper role, it is not fit to do the job.
Shabana Mahmood
The Sentencing Council might argue, rightly, that given the guideline was welcomed by the former Government, it probably thought it was on safer ground than I consider it to be. However, there is clearly a confusion, a change in practice, or a development in ways I disagree with about the proper line between what is practice or the application of the law and what is properly in the realm of policy. That is what I am absolutely not going to give any ground on and that I will be setting right.
Sir John Hayes
The right hon. Lady is right about the moving process or trend that she has described, but the trouble is that it is part of a bigger problem, is it not? It is the problem of judicial activism, and it is not new. For some time, judicial activists have sought to do exactly what she has said, and it is they, not people in this House, who endanger the separation of powers.
Shabana Mahmood
However, it is always up to the people in this House, if they feel that a law is being applied in ways that were not intended, to put that law right. I am afraid the right hon. Member’s comment is a rather damning indictment of 14 years of Conservative Government, with 14 years of sitting back and allowing other people to do the policy work that Ministers in the previous Government perhaps did not have the time or inclination to do themselves.
I do not think that judges, in applying the law, are doing anything wrong; they are doing their job. They are public servants, and they do their job independently. It is right that we have an independent judiciary in this country. We are very lucky to have a judiciary that is world class and highly regarded. One of the reasons why so many businesses from all over the world want to do business in this country is that they know they can trust our courts system and the independence of our judges. I think it is incumbent on the whole of this House to defend the independence of the judiciary, because that independence was hard won. It is one of our absolute USPs as a rule of law jurisdiction in this country, and none of us must ever do anything that puts it at risk.
If there are issues about the way in which the law is applied—if Parliament or Ministers ever consider that it has strayed too far from the original intention—we can always legislate, and I am doing just that today. I hope this is an example that others, if they have issues in their areas, may consider taking as well. It is a question of policy, and that should be decided and debated here in this place, in this House, and the public must be able to hold us to account for the decisions we take, rewarding or punishing us at the ballot box as they see fit. This is the domain of government, politics and Parliament, and today we reassert our ability to determine this country’s policy on the issue of equality of treatment before the law.
Dr Caroline Johnson
The right hon. Lady is making a point about the wider justice system and the importance of equality before the law. What has she done to assure herself and the House that, in all aspects of her Department’s work, people are being treated equally under the law—whether in relation to parole, how they are treated in prison, bail conditions and so on?
Shabana Mahmood
I have ordered a wider review of all guidance across all the MOJ’s work in so far as it relates to equality before the law to make sure that the problems we have uncovered here are not replicated elsewhere. There is the issue of bail guidance, which was discussed in the House earlier. I have already ordered a review, and that guidance is being redrafted as we speak. That particular guidance has been something like 20 years in the making—it has been added to over many years—so the redraft has to be careful and we must make sure it does not have any unintended consequences. However, we are cracking on with that work at pace, and I will make sure that, by the time I am done, we can all be absolutely clear that this sweep towards allowing potential differential treatment is sorted out once and for all.
Shabana Mahmood
If the hon. Lady will forgive me, I will make more progress. I think I have been more than generous.
That brings me to the Bill before us today. While the updated Sentencing Council guidelines are currently paused, if we do not act they will come into force— [Interruption.] Well, there was a lot to say, gentlemen, about the previous Government’s track record and it needed to be said. And I do not think the hon. Member for Kingswinford and South Staffordshire (Mike Wood) should mind me taking interventions from people on his own side. That is a novel approach for the shadow Front Bench.
Let me turn to the specifics of the Bill. It is tightly focused, containing just two clauses. Clause 1 amends section 120 of the Coroners and Justice Act 2009, which brought the Sentencing Council into existence. It dictates that the guidelines the council produces may not include references to personal characteristics, including race, religion or belief, or cultural background. Clause 2 relates to how the Bill will be enacted: that it will apply only to England and Wales, and that its measures will come into force on the day after it passes.
It is also important to be clear about what the Bill does not do. It does not stop the Sentencing Council from issuing broader guidance concerning requests for pre-sentence reports in those cases where it is helpful for the court to understand more about an offender’s history and personal circumstances. The Bill does not interfere with the courts’ duties to obtain a pre-sentence report in appropriate cases, for example those involving primary carers and victims of domestic abuse. And, as detailed in the Bill’s explanatory notes, it does not change existing precedent where the courts have determined that pre-sentence reports are necessary or desirable, in cases such as: Thompson, where the Court of Appeal recently emphasised their importance in sentencing pregnant women or women who have recently given birth; Meanley, in which the court referenced the value of pre-sentence reports for young defendants; or Kurmekaj, where the defendant had a traumatic upbringing, vulnerability, and was a victim of modern slavery. Instead, the Bill narrowly focuses on the issue at hand, putting beyond doubt a principle which finds its ancient origins in Magna Carta and has developed over the centuries to serve the interests of justice not just here but in jurisdictions around the world: that each of us, no matter who we are, where we come from or what we believe, stand equal before the law of the land.
Wider questions remain about the role and the powers of the Sentencing Council, as I have noted. The council does important work, bringing consistency to judicial decision making, but it is clear in this instance that it went beyond its original remit. It sought to set policy, which stood out of step with the Government of the day. Therefore, it raises the question: who should set sentencing policy? Today’s legislation only addresses this question in the narrowest terms, considering the guidance on pre-sentence reports. It does not give us a definitive resolution as to whether it is Government Ministers or members of the Sentencing Council who should decide policy in the future. As I noted, that leaves us with a democratic deficit.
As I told the House on 1 April, the question of the role and powers of the Sentencing Council must therefore be considered further. That work is already under way in my Department. Should a further change be required, the Government will include it in upcoming legislation. The Sentencing Council plays an important role in our justice system, and any changes to it must be made carefully and with the consideration it deserves. I am sure they will be discussed more in this House in the months ahead, and I welcome the opportunity to debate them.
The Bill we are debating today is small, but the issues it contains could not be of greater significance. I know the majority of right hon. and hon. Members in this House would agree that the Sentencing Council’s intentions on this issue were noble, but in trying to reach for equality of outcome, they sacrificed too much, undermining the sacred principle of equality before the law. It is right that we, as policymakers, stop the updated guidelines from coming into force. We must stand up for the idea that no matter our race or religion, no person should receive preferential treatment as they stand in the dock before a judge, so I beg to move that the Bill now be read a second time.
Robert Jenrick (Newark) (Con)
How did we get here? It takes a special kind of uselessness to engineer a crisis entirely of your own making and then to come to this House asking for applause as you legislate your way out of it. Let us remind ourselves what actually happened here. The Sentencing Council, an unelected unaccountable quango created by the Labour party, issued guidance that would have divided our criminal justice system by race, religion and identity; a two-tier system as offensive to common sense as it was to the most basic and important principle of equality before the law.
The Justice Secretary, asleep at the wheel, either did not know or did not care. Her officials signed off the guidance, her Ministry nodded it through, and the council published it; the guidance was due to come into force. Only then, after I raised this issue with her in this House, and in the face of fierce opposition from the Conservatives, the press and the public, did she rouse herself from her stupor—only then did she discover her principles.
Even at that point, however, the Justice Secretary did not act decisively. She did not use her powers to sack the architects of this shameful guidance, support my legislation or bring forward immediate legislation of her own to stop it. What did she do instead? She wrote a letter begging the council to reconsider. Such is the pace at which she moves—or, rather, crawls—that it took a further seven days to put her thoughts in writing after a meeting.
When the council did not move, the Justice Secretary threatened action—only to be humiliated by the chair of the council, who made clear that if she tried, he would take legal action and potentially challenge his own Justice Secretary. So incompetent was she that the Opposition had to take it upon ourselves to prepare a judicial review to do the Justice Secretary’s job for her, and such was the level of chaos over which she nominally presided that the Government’s own legal service was trooped out against us to defend the very sentencing guidelines that the Justice Secretary had denounced as two tier.
Mr Brash
In November 2023, the Sentencing Council consulted on these guidelines, and said that a pre-sentence report may be “particularly important” if an offender belongs to an ethnic, cultural and/or faith minority community. Does the shadow Minister agree that it was particularly important? I do not. If he does not agree, why did he say nothing for two years?
Robert Jenrick
I have to applaud the hon. Gentleman for reading out his Whips’ questions there. I have said it before and I will say it again, however: I do wish that he and those on the Labour Front Bench would stop perpetuating something that is obviously untrue. They know it is untrue. It has been said numerous times. The Sentencing Council itself—[Interruption.] Let me finish my point, because it is important.
Madam Deputy Speaker (Caroline Nokes)
Order. The shadow Lord Chancellor has just suggested that those on the Government Front Bench are perpetuating an untruth. He might like to think about whether he wishes to withdraw that comment.
Robert Jenrick
It is, I hope, inadvertent, Madam Deputy Speaker. The Sentencing Council wrote to the Lord Chancellor correcting her on this very point, and made clear that the guidance that was put before the previous Conservative Government was materially different from the one—
Several hon. Members rose—
Robert Jenrick
Let me finish the point. If hon. Members do not like the answer, perhaps they should hear it in full.
The Sentencing Council made it clear that the guidance that was put before the previous Conservative Government was materially different from what was ultimately put before this Labour Government. The council said in the previous iteration that pre-sentencing reports would usually be required. There was a presumption that pre- sentencing reports would come forward, but importantly, it preserved full discretion. The guidance that was ultimately brought forward, which was given the nod by the Justice Secretary’s officials who were present at the final meeting of the Sentencing Council, made a significant distinction: it said that such reports “must” be requested. That removed the discretion available to judges, which was a very significant difference.
Mrs Sarah Russell (Congleton) (Lab)
I have the pre-sentence report guidance in front of me. It says:
“When considering a community or custodial sentence, the court must request and consider a pre-sentence report (PSR) before forming an opinion of the sentence, unless it considers that it is unnecessary”.
It then goes on to describe various circumstances in which a pre-sentence report might be considered necessary and may “normally be considered necessary”. It does not remove judicial stipulations and interventions completely, and to suggest otherwise is not accurate.
Robert Jenrick
The guidance does not use that phrase. It says a report would “usually” be required. That is an important point, because it removes discretion. Of course, there might be instances in which a judge would not request a report, but I think it would be extremely unlikely, in practice, that a judge would choose not to take forward a pre-sentence report, in the light of the new guidance. That is why we felt it so important to take action.
Several hon. Members rose—
Robert Jenrick
Let me make some progress.
Eventually the Sentencing Council did U-turn, but not before the guidance had briefly come into force. The council took until midday on 1 April, which was several hours after the guidance had come into force, to update magistrates and judges. Its email undermined the Lord Chancellor yet again. It stated that it still believed that the guidance was “necessary and appropriate”. The whole saga has been nothing short of farcical. It has been an embarrassment. It has damaged public confidence in the justice system, and the Justice Secretary’s Bill does not fix that trust deficit. It is half-baked. It is a half-job that stores up problems for another day—because, make no mistake, we will be back here again and again; it will be like Groundhog Day. The Justice Secretary has left in post at the Sentencing Council the very people who drafted these rules and declined her initial invitation to change them. She has left the system intact, and she has left the door wide open for this to happen again. That is not hypothetical. We know for a fact that more offensive two-tier sentencing guidelines are incoming.
The Sentencing Council is consulting on new immigration guidelines that water down sentences for people smugglers. If they come into force, hundreds of immigration offenders a year will not meet the 12-month threshold for automatic deportation, blowing a hole in border controls. If the Justice Secretary wanted to stop that—there are plenty of open-border activists who would oppose her—this Bill leaves her powerless to do so. She has chosen to be powerless. It is the definition of madness to repeat the same decisions and expect different results. History will keep repeating itself until Ministers take back control of sentencing frameworks. But still the Justice Secretary stands at the Dispatch Box and claims that there will be no two-tier justice under her leadership.
The Bill fixes one small element of the problem and leaves the rest of it entirely intact. It does nothing to stop the two-tier pre-sentence report guidance, which still instructs probation officers to take into account so-called intergenerational trauma—trauma suffered not by the defendant, but presumably by their ancestors. It does nothing to stop the bail guidance issued by the Ministry of Justice, which instructs officials to “prioritise” ethnic minority defendants for bail decisions—not on the facts of the offence, not on the basis of risk to the public, but because of their racial or cultural identity. It does nothing to stop the “Equal Treatment Bench Book”, the official handbook for judges, which is riddled with activist talking points, including the claim that migrants are mistreated by the press, and the adoption of a dangerously expansive definition of Islamophobia that could amount to a back-door blasphemy law.
Everywhere we look—more examples emerge every week—this ideology runs through the Ministry of Justice like rot through the rafters. The principle of equality before the law, one of the great inheritances of our country, is being systematically inverted, replaced by cultural relativism, by a hierarchy of victimhood. Some defendants are to be treated gently; others are to face the full force of the law—all depending on their background, race, religion or self-declared identity. That is not justice. It is injustice, wrapped in the language of compassion. But who is it compassionate to? The victims? Of course not; they do not get a look in.
Sir John Hayes
My right hon. Friend deserves great credit for championing the cause of justice and obliging the Government to follow suit, albeit grudgingly. Leaving aside the fundamental injustice that he describes—the two-tier justice system—does he acknowledge that what the Sentencing Council proposes and continues to do undermines popular faith in the rule of law and justice and, as the Lord Chancellor herself says, tears the whole system apart?
Robert Jenrick
That is the very real risk of what we see, not just in these aborted sentencing guidelines, but in the broader fabric of two-tier justice that we are revealing with every passing day. What we all want to see, and what I believe the hon. Member for Hartlepool (Mr Brash) wants to see as well, is equality before the law. That means that in no instance should the law be applied differently depending on the colour of people’s skin or the faith that they abide by. We must all fight against that, because it is immensely corrosive to public trust and confidence in the criminal justice system.
Robert Jenrick
The guidelines we are talking about came into force—or would have done—under this Labour Government. I will not return to everything I said earlier, but those of us who were in this Chamber on the day that I revealed this issue all know that neither the Justice Secretary nor any of her Ministers had the faintest idea that any of this was happening. I watched the Justice Secretary look to her Ministers; she was greeted by blank faces. They had no grip on what was happening in their Department.
The hon. Member for Hartlepool makes the good point that the issues that we are discussing predate this Labour Government. This is a broader issue facing our country. We all have to be defenders of equality under the law. I do not seek equality of outcome in our criminal justice system; I seek equality of treatment. That is the heart of a fair criminal justice system. That may be a point of difference between some of us in this House. All I seek is for every person in this country—man or woman, regardless of their religion or the colour of their skin—to be treated exactly the same by the law.
Everywhere we look in the Ministry of Justice, we see this ideology. The most worrying part is that I think the Justice Secretary knows this. She stood here and said that the appearance of differential treatment before the law is particularly corrosive, and I agree wholeheartedly with her.
Robert Jenrick
I will make progress.
The guidance does not just create the appearance of two-tier justice; it is two-tier justice. The Secretary of State cannot wash her hands of that. The bail guidance comes from her own Ministry. The pre-sentence guidance is issued by officials she oversees. The bench book is sanctioned by the Judicial College, under the watch of the Lady Chief Justice. If the Justice Secretary truly believes in equality before the law, and if her words are more than empty slogans, why is any of this happening on her watch? The truth is simple. This Bill is not the solution. It is a fig leaf. It is damage control. It is political theatre to distract from the deeper rot that the Government have permitted to fester. Until this type of guidance is ripped out, root and branch, from sentencing, bail, judicial training and appointments, the principle of equality before the law remains under direct assault.
We will not vote against the Bill, because we will never support two-tier justice, but we will not let the Justice Secretary rewrite history, either. She did not stop these rules or fight against them. She did not even know about them until we pointed them out to her. She allowed them to happen, and then panicked when the backlash came. Now she is using this House’s time to clean up her mess. She wears the robes and she dons the wig, but she is not in control of the justice system. Despite the big talk today, there is still two-tier justice on her watch. If she continues to do so little about it, we can only conclude that, at heart, she truly supports it.
Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)
I can see that, when it comes to this legislation, I am in a minority—it is not the first time, and I suspect that it will not be the last. There has been a great deal of misinformation about the Sentencing Council’s original guidelines, both in the run-up to and during the debate, so I, with all humility, want to insert some facts into the debate.
First, it is important to recognise what the Sentencing Council actually is. Much of the debate today and in recent weeks has seemed to presume that it is a bunch of heedless young barristers and social workers. On the contrary, the Sentencing Council is largely composed of some of the most senior judges in the land. They include: Lord Justice William Davis, its chair, who was called to the Bar in 1976; His Honour Judge Simon Drew, a circuit judge sitting in the Court of Appeal; Lord Justice Tim Holroyde, lord justice of appeal and vice-president of the Court of Appeal; and the honourable Mr Justice Mark Wall, who was appointed a High Court judge in 2020. There are also some senior probation officers and magistrates. That is hardly a cohort of men and women who need the firm hand of an MP on their shoulder to explain to them what the rule of law is.
Dr Caroline Johnson
The right hon. Lady is making the important point that the Sentencing Council is comprised of senior and learned individuals. Given that, what circumstances does she think conspired to let it get the guidelines so very wrong? It is clearly felt on both sides of the House that they are wrong.
Ms Abbott
I can say with confidence that the Sentencing Council is talking about issues to do with race and criminal justice because of a history, going back decades, of problematic issues in relation to race and criminal justice. I will come to those later. The independence of the Sentencing Council is crucial, and the idea that anybody in the Chamber is standing up for law and order yet seeks to undermine its independence—and by implication, that of the judiciary as a whole—is quite remarkable.
Next, what do the guidelines actually say? Much of the debate implies that black and minority persons are singled out for pre-sentence reports under the guidelines. On the contrary, there is a whole list of people in the guidelines on whom, the Sentencing Council suggests, judges and magistrates might ask for a pre-sentence report. Those persons include those at risk of committing their first custodial sentence; young adults; women; ethnic minorities; yes, cultural minorities, of course; pregnant and post-natal women; and the sole or primary carer for dependent relatives. The Sentencing Council is clear that that is not an exclusive list; ideally, every defendant should have a pre-sentence report. The aim of the guidelines is to ensure that judges and magistrates get the most information possible. Who could object to garnering more information on any defendant? It is certainly not the intention of the guidelines to dictate the sentence in any given case.
Yet it is being argued that a pre-sentencing report will discourage a judge from sending an offender to jail. We are asked to believe that our judiciary is weak-minded and susceptible, and that it will not live up to its centuries-old standards, which, as we heard earlier, go all the way back to Magna Carta. However, the House was also told earlier that our judiciary is world-class and highly regarded. Both propositions cannot be true.
The Parliamentary Under-Secretary of State for Justice (Alex Davies-Jones)
Yes, they can.
Ms Abbott
Well, either our judiciary is world-class and highly regarded, or it is so soft-minded that the very existence of a pre-sentencing report will make it rule in a way in which it would not otherwise have ruled.
Decisions by judges and magistrates on individual cases are not the same as policy. The Sentencing Council itself is very clear that it does not seek to dictate policy; it is simply trying to ensure that judges and magistrates have the maximum amount of information. Leading King’s Counsel Keir Monteith says that there has been a deliberate misreading of the rules in order to generate a row, and I believe that is correct.
Then we come to the talk, which I have heard on both sides of the House, about two-tier criminal justice. That can only mean that black defendants are treated more favourably than white defendants. Yet the facts tell us to the contrary. Ministers will be aware of the Lammy review, chaired by my right hon. Friend the Member for Tottenham (Mr Lammy)—now the Foreign Secretary. It was a review of race in the criminal justice system, in which he found that
“Despite making up just 14% of the population,”
black and ethnic minority men and women
“make up 25% of prisoners, while over 40% of young people in custody are from BAME backgrounds.”
He added:
“If our prison population reflected the make-up of England and Wales, we would have over 9,000 fewer people in prison—the equivalent of 12 average-sized prisons.”
My right hon. Friend did not find a criminal justice system where black and brown people are treated more favourably than white people, and he did not find equality before the law. There is no reason to believe that things have changed since he drew up his review.
We need to appreciate that not only do we have a two-tier system, but it is a two-tier system in completely the opposite way to what the Lord Chancellor suggests, and it has been like that for decades. The population wants to see our two-tier criminal justice system taken seriously.
Members may remember the tragic death of Stephen Lawrence in the early 1990s. It took a Labour Government and a Labour Home Secretary to commission a judge-led inquiry into the Stephen Lawrence case. In 1999 the Macpherson inquiry reported. It spoke in an unequivocal way about institutional racism in the police service, and it spoke in a way that I had never heard it spoken about in this House or at the most senior levels in the state. Nobody since then has challenged the notion that there is institutional racism in the police.
Do we have to have our own Macpherson inquiry into the workings of the judicial system before people will accept that institutional racism is an issue in the courts as well? It is not enough to say, “Well, you know, the facts point in that direction but we are not quite sure why the figures are like that.” We know why the figures are like that, and we have known that for decades.
If we want to win the respect of the community as a whole, we must be seen to be working towards a fair criminal justice system, not just trying to score points off the opposition; and we must look at the long term, rather than the short term. We know that, in England and Wales, black people are much more likely to be arrested than white people. Specifically, black individuals are twice as likely to be arrested as white individuals. That disparity extends to imprisonment, with black individuals being more likely to be sentenced to prison and serving longer sentences than their white counterparts. Everybody knows that people are not treated the same, and it is misleading of Members on both sides of the House to imply that that is so.
Peter Herbert, chair of the Society of Black Lawyers, said:
“We have experienced racist two-tier policing for over 500 years. If we achieve equal treatment that is not two-tier as it is long overdue. We have never asked for special treatment only equal treatment.”
The Lord Chancellor should pay attention to the wish of so many members of the community, in her constituency in Birmingham and my constituency in east London, and the wishes of so many millions of people in the community to see a fair criminal justice system that treats people fairly, not unfairly as has happened in the past. Members will know that it took the Macpherson inquiry to get a measure of understanding about criminal justice in policing.
In closing, I will say this. It is interesting to hear the banter about this issue between those on the two Front Benches, but this is not an issue for banter. This is people’s lives; this is people’s liberty. I do not think that the debate is enhanced by some of the Trump-like narrative that we are getting from the Opposition. We do not need Donald Trump-type politics in Britain today. We need seriousness about the unfair discrimination in the criminal justice system, and a willingness not just to talk about it, but to do something about it.
Madam Deputy Speaker (Caroline Nokes)
I call the Liberal Democrat spokesperson, Josh Babarinde.
Josh Babarinde (Eastbourne) (LD)
Liberal Democrats believe in equality before the law, Liberal Democrats believe in the rule of law, and Liberal Democrats believe that no one is above the law, so it has been heartening to hear those words echoed across the Chamber today.
But actions speak louder than words, which is why I regret to say that few have acted more to erode those legal and democratic values than the two-tier Tory party that occupies the Benches next to me—two-tier Tories who unlawfully partied in No. 10, while the rest of us missed funerals for lost relatives; two-tier Tories who unlawfully suspended Parliament to get their way, while lecturing us about the rule of law; two-tier Tories who unlawfully approved developments for their donor mates, while purporting to talk tough on crime; and two-tier Tories whose unlawfulness, chaos and double standards landed them with the biggest election defeat in their history.
The Conservatives still have not learned, because that hypocrisy continues today in the context of the sentencing guidelines in question. They nodded through earlier editions of the guidelines when they were in government, yet they make a scene about them today now that it has become politically convenient for them to do so. According to the Sentencing Council, just one MP objected to the cohorting in the previous guidelines put out to consultation in 2023-24. I will give way to the then Home Office Minister, the right hon. Member for Newark (Robert Jenrick), if he can confirm that it was he who made that objection. No—radio silence. [Interruption.]
Our country deserves better than the circumstances that have given rise to the Bill. Those circumstances are ultimately that the previous Government underfunded our probation and courts system so severely that pre-sentence reports have since been rationed and are not used universally, or indeed anywhere near it. In fact, the use of pre-sentence reports has declined by 44% over the last decade almost, according to Lord Timpson. That is despite the sentencing code having a presumption in favour of their use, regardless of any personal characteristic or circumstance.
The Liberal Democrats believe that that near-universal presumption is critical, because when the state is considering depriving someone of their liberty, judges and magistrates should be equipped with all the information possible to pass the sentence that is most likely to reduce reoffending and protect victims and survivors. Offenders need it and victims deserve it.
The Liberal Democrats believe that we should really be having a debate about how we can resource a criminal justice system that can fulfil pre-sentence reports for all offenders who need them, rather than a debate that feels grounded in rationing their use. We will therefore abstain on Second Reading, not because of indifference, but because of principled concerns that I will present constructively, to reciprocate the constructiveness with which the Secretary of State and her officials have engaged with me on this matter in recent weeks.
One concern is that this Bill simply is not necessary to achieve its stated aim. The Sentencing Council has, in response to the strength of feeling in Parliament, paused the implementation of its guidelines. It has not said how long that pause will last. My understanding is that the Department has not asked the council how long it would be willing to pause the guidelines. It seems to me that, in response to the most recent act of the Lord Chancellor, there is new-found space for an agreement to be reached, through dialogue with the Sentencing Council and the Lady Chief Justice, without a single minute of debate on primary legislation. Such legislation could then be devoted instead to patching up other injustices in our system.
Another concern is that this proposal is being rushed through without comprehensive consultation or co-ordination with wider work that is already under way. David Gauke is currently conducting an independent review of sentencing, which is due to report this spring. That review ought to have provided a clear opportunity to examine these issues in depth and to ensure that any reforms are evidence-based, balanced and considered in the broader context of sentencing policy. If the Government are convinced that primary legislation is required, why not wait for the Gauke review to report, take advantage of that independent insight, and then introduce coherent proposals in legislation later in this Session?
An additional concern is that although the Bill ostensibly gestures towards fairness, it fails to confront some of the most pressing injustices in our criminal justice system—to which the Mother of the House, the right hon. Member for Hackney North and Stoke Newington (Ms Abbott), referred—including those identified by the Lammy review.
We know that there is disproportionality at most stages of the criminal justice process affecting various groups, from stop and search to charging decisions, early guilty pleas and sentencing outcomes. Ethnic minority individuals, women and those with mental health issues continue to be over-represented and underserved, yet this legislation makes no attempt to address that. While I welcome the review of data that the Justice Secretary described, it is unwelcome that the outcome of that does not feature in these proposals.
Finally, I am deeply troubled with the political context in which this Bill is being introduced. It may appear technical on the surface, but the legislation risks falling into a trap in which criminal justice is used by some in this House and beyond to stoke division, appeal to populist headlines and wage a cynical culture war. We must not allow our courts and sentencing practices to become pawns in that political game, nor part of a second stab at a Tory leadership campaign.
It is critical that in this debate and in any reform we make to sentencing policy, we lead with an evidence-based process and with a determination to tackle the injustices embedded in our criminal justice system, whether it is those disproportionately affecting women, ethnic minorities or white working-class boys—the list continues. We urge the Government to listen, reflect and return with proposals that work with the Sentencing Council, with the judiciary and with the findings of David Gauke’s independent sentencing review. Only then can we abolish the unjust two-tier system created under the two-tier Tories.
Madam Deputy Speaker (Caroline Nokes)
After the Chair of the Justice Committee, I propose to introduce a four-minute time limit. I am conscious that many Members will be disappointed this evening.
Andy Slaughter (Hammersmith and Chiswick) (Lab)
Let me begin by summarising how we got here. On 29 November 2023, the Sentencing Council launched a consultation on proposed changes to the imposition of community and custodial sentences guideline. On 19 February 2024, the then Minister for Sentencing, the hon. Member for Orpington (Gareth Bacon), wrote to the chair of the council and welcomed its work on the revised guideline, in particular the
“fuller guidance around the circumstances in which courts should request a pre-sentence report”.
On 28 March 2024, the then Chair of the Justice Committee, Sir Bob Neill KC, wrote to the chair of the Sentencing Council noting that the council had conducted a particularly effective consultation exercise.
On 5 March 2025, a year later, the Sentencing Council published the revised guideline, saying that it would come into effect on 1 April. The same day saw the first exchange in this Chamber between the Lord Chancellor and the shadow Lord Chancellor, the right hon. Member for Newark (Robert Jenrick), on the guideline. The accusation by the shadow Lord Chancellor that the guideline would
“make a custodial sentence less likely”
for those from an ethnic minority, cultural minority and/or faith minority community was not the view of the Sentencing Council, but the exchange led to extensive correspondence between the Lord Chancellor and the chair of the Sentencing Council for the rest of March.
I do not have time today to describe the contents of those letters, but the central point raised by the chair of the Sentencing Council was that the purpose of a pre-sentence report is to provide information, not to determine the sentence. He said:
“Frequently the information provided will not assist the offender’s prospect of avoiding a custodial sentence: rather the reverse.”
He added that the guideline does not make a custodial sentence less likely for someone simply by way of their membership of a cohort; that the guideline
“does not instruct or mandate judges and magistrates to request a pre-sentence report”
but is discretionary; that the list of cohorts is “non-exhaustive”; that a pre-sentence report “may be necessary” for those outside the list; and that,
“The section of the guideline relating to pre-sentence reports is directed to the issue of information about offenders, no more and no less.”
On 31 March 2025, following a meeting with the Sentencing Council, the Lord Chancellor said she was going to introduce legislation to render the section on cohorts unlawful. The guideline was due to come into force on 1 April. As a result, the council said that it would delay the date on which the guideline was due to come into force, pending such legislation taking effect.
On 1 April 2025, this Bill was given its First Reading. The Bill is designed to make it unlawful for a sentencing guideline issued by the Sentencing Council to include a presumption that a pre-sentence report should be obtained based on the offender’s membership of a particular demographic cohort. The Bill has one operative clause, clause 1, which would amend section 120 of the Coroners and Justice Act 2009. The drafting of clause 1 indicates that the provision will apply to all sentencing guidelines that have been issued by the Sentencing Council and that are already in force when the provisions in this Bill take effect.
The Bill states that guidelines produced by the Sentencing Council cannot include provision framed by reference to “personal characteristics”. The Bill then specifies that
“‘personal characteristics’ include, in particular…race…religion or belief…cultural background.”
The list is non-exhaustive and therefore also covers other personal characteristics—for example, age, disability, sex and sexual orientation. Clause 1 would therefore render unlawful the following cohorts that were included in the imposition of community and custodial sentences guideline issued on 5 March:
“a young adult…female…from an ethnic minority, cultural minority, and/or faith minority community…pregnant or post-natal…has disclosed they are transgender…has or may have a serious chronic medical condition or physical disability, or mental ill health, learning disabilities…or brain injury/damage”.
The explanatory notes state that the Bill does not prevent the Sentencing Council “from issuing guidelines advising courts to consider the offender’s personal circumstances in deciding whether to request a PSR”.
The explanatory notes also state that the Bill does not affect Court of Appeal case law on the circumstances where a pre-sentence report is either necessary or desirable. It then cites three cases:
“Thompson…which says that where a woman who is pregnant or has recently given birth is to be sentenced, it is desirable for the court to obtain a pre-sentence report;…Meanley…where the court referred to the importance of PSRs in serious cases involving young defendants; and…Kurmekaj…where the court said that the defendant’s traumatic upbringing, vulnerability and the fact they had been a victim of modern slavery meant a PSR should have been requested”.
The Government have repeatedly emphasised that they object to the inclusion of ethnic, cultural and/or faith minority community in the guideline. The Government have not said that they object to the inclusion of the other cohorts in the guideline framed by personal characteristics. The fact that the explanatory notes make clear that the Government do not intend to prevent the Court of Appeal, or any other body, from issuing guidance relating to pre-sentence reports from being framed by personal characteristics, other than ethnic, cultural and/or faith minority community, would appear to indicate that they do not object in principle to such an approach. I am sure some of these matters can be explored more in Committee.
I will conclude by saying a few words about judicial independence. In his letter dated 10 March to the Lord Chancellor, the chair of the Sentencing Council said:
“There is general acceptance of the guidelines by the judiciary because they emanate from an independent body on which judicial members are in the majority. The Council preserves the critical constitutional position of the independent judiciary in relation to sentencing.”
The independence of the judiciary is recognised as a principle of fundamental importance to the United Kingdom’s constitution. The principle serves to protect the judiciary’s ability to exercise its functions in deciding cases in accordance with the law and free from external pressures. Deciding on an offender’s sentence is a clear example of that, but the principle of judicial independence also requires that the judiciary is treated with respect and with recognition of the constitutional boundaries between the judiciary, the Executive and Parliament.
Lord Hodge, the deputy president of the Supreme Court, said in 2018:
“Within Parliament it is a parliamentary custom, supported by rulings of the Speaker, that an attack on a judge’s character or motives, or charges of a personal nature or a call for his or her dismissal, should be made only on a substantive motion on which a vote will be taken, and also that arguments that a judge had got a decision wrong should be made in moderate language.”
There has been significant criticism of the Sentencing Council, and in particular its chair, in this Chamber. The shadow Lord Chancellor asked on 1 April in this House if the Lord Chancellor could
“honestly say at the Dispatch Box that she has confidence in the head of the Sentencing Council, Lord Justice Davis, given that he has brought it into total disrepute”—[Official Report, 1 April 2025; Vol. 765, c. 184.]
Criticising the judiciary for their decisions in their capacity as members of the Sentencing Council risks undermining their independence as serving judges.
It remains to be seen whether the measures in this Bill have ripples beyond the narrow prescription in clause 1. I look forward to the Government clarifying the detailed effects of the Bill in Committee, but it would be unfortunate if such a modest piece of legislation left in its wake collateral damage to the relationship between Parliament, the Executive and the judiciary.
Sir Jeremy Wright (Kenilworth and Southam) (Con)
It is important in this debate to be clear what we are talking about and what we are not. The part of the guideline produced by the Sentencing Council that led to this legislation relates to the circumstances in which a pre-sentence report is produced, not to the passing of a sentence itself. It is also important not to overstate the problem. As we have heard, there is already law that says there should be a pre-sentence report in almost all cases, unless it is unnecessary, and most offenders being considered for either a community or custodial sentence—in the Crown court, at least—already have one.
The guidance that the Sentencing Council produces on the ordering of a pre-sentence report, though, does matter. That is because such a report is designed to give sentencers more information about the person they are sentencing. Without that information, it can be very hard to apply the full range of sentencing options. That might be about whether a rehabilitation activity requirement or a programme requirement might be appropriate, or to assess capacity for unpaid work. If a sentencer does not order a pre-sentence report for a particular offender, they may not be able to impose some of the more demanding community sentences and may find themselves more likely to impose a custodial sentence as the only available and realistic alternative. It does matter whether a sentencer is being encouraged to order such a report for an offender, and any guideline suggesting that this should be more appropriate for someone of one ethnicity, faith or culture, as opposed to another, cannot be right.
I accept that the Sentencing Council was trying to do good, but in reality we do not address inequality by replacing it with a different inequality. The Sentencing Council has misjudged this issue, and the Government are entitled to come to that view too. It would have been better if legislation was not needed to resolve this issue, but the Sentencing Council, independent as we know it is, has clearly concluded that it will not do as the Lord Chancellor has asked, and that means that legislation is the only realistic alternative. However, I have concerns about the way in which the Government are going about this, particularly in the breadth of the drafting of the Bill. I mentioned in an intervention on the Lord Chancellor one specific concern, which I will not go over again in view of the time, but which we might return to in the later stages of the Bill.
I think it is worth Ministers considering whether the use of the phrase “personal characteristics” is too broad. The Chair of the Justice Committee read out some of the other personal characteristics referred to in the draft guideline, which I do not think are anywhere near as controversial. We need to keep in mind that this is about a process in which a sentencer is given information about an offender in order to determine the appropriate sentence. I do not think that information about faith or ethnic origin would fall into the appropriate category, but information about health conditions or disabilities most certainly might.
There is a danger of throwing the baby out with the bathwater: not all personal characteristics should be left out of account in sentencing. I therefore ask Ministers to consider whether they can tighten the wording of clause 1(2) and (3) in particular. If they do so, I think that will avoid some rather arcane discussions about what can be properly described as personal circumstances and personal characteristics. However, I also think there is a danger of losing sight of the good work that the Sentencing Council does.
I accept that this will not be a universally popular point of view, but I do think that the Sentencing Council adds something important to the sentencing process. It is important that we do not lose sight of that, or of the fact that the guideline that has been drafted is to replace substantially out-of-date guidance. I hope that point will also be noted by Ministers.
Dr Allison Gardner (Stoke-on-Trent South) (Lab)
While I acknowledge that the updated Sentencing Council guidelines attempted to address inequalities in the criminal justice system, we must maintain the principle of equality before the law. As such, I support this Bill. I note, however, that the Bill does not prevent the Sentencing Council from issuing guidelines advising the courts to consider an offender’s personal circumstances when deciding whether to request a pre-sentence report, particularly when those circumstances are uniquely linked to their personal characteristics.
Pre-sentence reports are desirable when the defendant is a vulnerable woman who has committed a less serious crime—for instance, when they are pregnant or post-natal, the primary carer for dependent children, or a victim of domestic abuse or exploitation. Of course, those issues are often compounded when we consider intersectionalities, such as those experienced by black women. So many women in the criminal justice system are vulnerable: nearly two thirds are victims of domestic abuse, a similar percentage have children, and many have experienced adverse childhood experiences and trauma. Those vulnerability factors make it critical that personal circumstances affecting female offenders are given consideration in pre-sentence reporting.
Women in custody have complex health needs, which can increase the risks associated with pregnancy for mothers and their children. Babies born in prison are twice as likely to be born premature and seven times more likely to be stillborn. These are not just numbers; they affect real people, women who are already experiencing trauma and babies entering the world in incredibly difficult circumstances. Consideration of pregnancy and the associated risks to mothers, their unborn children and their newborn babies is therefore critical in determining appropriate sentencing. Custodial sentences can often do more harm than good, both to pregnant women and to their children. Women are far less likely on average to commit violent or sexual offences, and are far more likely to be charged with petty crime, non-violent crime and theft. In those cases, community sentences may be preferred, so long as the offender does not present a risk to wider society.
In April 2024, the Sentencing Council introduced a new mitigating factor—pregnancy, childbirth and post-natal care—in sentencing guidelines to consider the impact of custody on pregnant offenders and their dependants. This factor recognises that when the impact on offenders’ dependants would be disproportionate to the aims of custodial sentencing, imprisonment should not be imposed. Specifically, it relates to whether the risk posed to women and their dependants outweighs the risk associated with their crime, in order to determine a fair sentence for all—both for wider society, and for the offender and her children. It is critical that the justice system strikes the right balance when determining sentencing, and a pre-sentence report can inform this. As such, I am particularly glad that this Bill does not affect Court of Appeal case law on when pre-sentence reports are necessary or desirable in cases concerning women who are pregnant, are victims of domestic abuse, or have recently given birth.
I believe that many of the issues raised today speak to a wider issue pertaining to women’s experiences in the justice and sentencing system more broadly. Ensuring access to pre-sentence reports helps courts to make informed, fair and just decisions, and for women in vulnerable circumstances, that can make all the difference.
Sir Ashley Fox (Bridgwater) (Con)
This Bill is unfortunately necessary because of the unwise actions of the Sentencing Council. While the Lord Chancellor is right to bring the Bill forward, she did so only at the very last moment. It was on Monday 31 March, mere hours before the guidelines were due to come into force, that the Sentencing Council was forced to perform a U-turn. Those guidelines would have led to a two-tier justice system in England and Wales.
The Sentencing Council did not withdraw those guidelines out of wisdom or principle—it did so because it was caught out. Its backtrack was quietly communicated to judges and magistrates several hours after courts had already opened on Tuesday. To make matters worse, the Sentencing Council’s message said that it still believed the policy was necessary. There was nothing necessary about that policy.
Under the proposed guidelines, judges and magistrates were told that pre-sentence reports should normally be required when sentencing individuals from ethnic, faith or cultural minority groups. What about those who are white, male and not part of a specified minority? They would not have fallen within that description. The implication was clear: defendants will be treated differently, not based on their actions or the harm they have caused, but based on their identity, and that is wrong. It was only after the intervention of my right hon. Friend the Member for Newark (Robert Jenrick), the shadow Justice Secretary, that the Lord Chancellor rightly took action. Race, culture and religion should never determine whether someone goes to prison. The Lord Chancellor said that she was willing to legislate to stop this travesty if the Sentencing Council refused to back down, and that is what we are now doing.
This is about the most fundamental principle in a free society: equality before the law. The question we must now ask ourselves is how the Sentencing Council got this so badly wrong and, judging by the comments of Lord Justice Davis, would continue to get wrong. The Sentencing Council’s guidelines would have had real consequences. In borderline cases where a judge is unsure whether to issue a custodial sentence, the presence or absence of a pre-sentence report can be decisive. The whole purpose of these reports is to influence the outcome. By tilting the system toward giving those reports preferentially to certain identity groups, the council would effectively be tipping the scales of justice, and the council knows it. Baroness Falkner, chair of the Equalities and Human Rights Commission, has warned that the guidelines may violate the Equality Act 2010.
If we allow sentencing outcomes to be guided by race, faith or cultural identity, we abandon the core British principle that the law applies equally to all of us. I agree with the Lord Chancellor that we should pass this legislation to override this guidance, but how confident is she that we will not face a similar situation again? I would like her to go further and ensure that Parliament is given oversight of all future sentencing guidance. We must put into law the principle that no factor like race, religion or cultural minority status should ever influence sentencing procedures. Justice must remain blind, not selectively blinkered. If we lose equal justice, we lose the foundation of a free society.
Mr Jonathan Brash (Hartlepool) (Lab)
I welcome this Bill and the swift action taken by the Lord Chancellor to correct a clear wrong. Had they been implemented, the Sentencing Council’s new guidelines would have introduced differential treatments before the law, which can never and should never be acceptable. The question is: how did we get to this point? Did these guidelines simply appear out of nowhere? Of course they did not. They were subject to extensive consultation under the previous Conservative Government, who welcomed them without reservation.
The consultation published in November 2023 and closed in February 2024 indicated clearly that a pre-sentence report “may be particularly important” if the offender belonged to ethnic, cultural or faith minority communities. The then Conservative sentencing Minister, the hon. Member for Orpington (Gareth Bacon) wrote to the Sentencing Council, thanking it and welcoming the expanded guidance on the circumstances in which courts should seek pre-sentence reports. Let us be crystal clear: it was the last Conservative Government who endorsed the idea that it was “particularly important” to request pre-sentence reports for individuals from ethnic, cultural or faith minority backgrounds and therefore, by extension of basic logic, less important for other groups. The Sentencing Council had their answer: the then Conservative Government supported its changes.
Given what we have heard today, there must surely have been a flurry of opposition in certain quarters. What did the now shadow Justice Secretary, the right hon. Member for Newark (Robert Jenrick) say about it at the time? The answer is nothing. What did the Leader of the Opposition say? Nothing. Perhaps if they had bothered to stand up and do their job, as Labour has today, these guidelines would never have been issued in the first place.
For all the failings of the last Conservative Government, many Members were appalled by the outright refusal of the Sentencing Council to amend the guidelines when requested to do so by the Justice Secretary. That refusal is the reason we find ourselves here today. Far too much of the British state now appears to operate beyond the reach of those democratically elected to lead it. There are too many quangos, too many faceless bureaucracies, too many levers of power seemingly detached from those whom the people have chosen to govern them. The British public do not understand how a court can block the deportation of a convicted criminal whom the Government wish to remove from the country. They do not understand how a Chancellor is constrained in his or her decision-making by the actions of an unelected Office for Budget Responsibility, and they do not understand how a Justice Secretary cannot simply prevent unequal treatment before the law.
The Bill is the right response to this specific situation, but how long will it be before we find ourselves here again, in another stand-off with the Sentencing Council, over another issue on which unelected officials clash with democratically accountable politicians? I believe that in the fullness of time—and I welcome what the Lord Chancellor said today about her further review—we will have to go further; I believe that we should abolish the Sentencing Council altogether.
Mr Peter Bedford (Mid Leicestershire) (Con)
What the Sentencing Council ludicrously proposed was nothing short of two-tier justice: guidelines which would mean that young black, Asian or indeed other non-white offenders could receive more lenient sentences than their white counterparts in exactly the same circumstances. Let me be clear: justice must be equality before the law. As someone once said,
“justice should not only be done, but…be seen to be done”.
It should not depend on your race, the colour of your skin, your culture or your religion. It is high time we reminded the unelected, unaccountable, and quite frankly woke quangos that equality means treating everyone the same, and not creating one rule for some and one rule for others.
I am therefore glad that we have finally reached the Second Reading of a Bill that will stop the madness espoused by this out-of-touch, “liberal dinner party set” advisory body. For far too long, bodies such as the Sentencing Council have been allowed to rule the roost. Quangos of this kind—unserious and wasteful organisations —are costing the taxpayer more than £64 billion a year. Parliament must be sovereign, and should not continue to come up against a brick wall of regulatory and bureaucratic obstacles.
I cannot help having a sense of déjà vu. I was sitting in this very place well over a month ago when my right hon. Friend the Member for Newark (Robert Jenrick), the shadow Lord Chancellor, introduced legislation that would have prevented this slide into two-tier justice—and all the while, the Lord Chancellor allowed the chairman of the Sentencing Council to effectively run rings around her, the Government and the will of the House. Let us stop pretending: sadly, two-tier justice does exist, and the British people know it. Let us look at the facts. People are being thrown into jail for making stupid comments online, while grooming gangs were able to operate unchallenged because of a fear of cultural sensitivities. This is wrong, and the British people demand that it end now. However, it is not happening just in the courts. Police forces in the UK have been caught blocking white applicants from jobs, and that was based not on ability but purely on the colour of their skin.
How on earth did we get here? This is the country of the Magna Carta, the birthplace of common law and some of the greatest legal minds that the world has ever seen, yet we have enabled an unelected quango to propose guidelines that are openly discriminatory, and equality before the law has been replaced by ideology over fairness.
Mike Wood (Kingswinford and South Staffordshire) (Con)
Equality before the law is at the heart of the rule of law. As the great Roman statesman Cicero said:
“For rights that were not open to all alike would be no rights.”
The revised guidelines from the Sentencing Council fundamentally went against that important principle. To introduce a presumption that pre-sentence reports would be required not necessarily because of a particular vulnerability of offenders or circumstances related to their offences, but because of the colour of their skin, the region of their ancestors’ origin or the religious beliefs that they held is two-tier justice, no matter how laudable the intentions. This is not about Court of Appeal judgments such as Thompson, which the Lord Chancellor referred to, and it is not about factors that could fundamentally change the effect of a particular judicial sentences on an offender, or factors relating directly to the circumstances of the offence. This is purely about those characteristics.
My right hon. Friend the shadow Lord Chancellor did a huge service to not only this House but our country when he raised this matter from the Dispatch Box on 5 March, because it was clear that the Lord Chancellor was completely blindsided. Neither she nor her Ministers knew anything about the proposals. In fairness to the right hon. Lady, who is not in her seat at the moment, I am sure that she was as appalled as we were at the idea that people should be treated differently purely because of their ethnicity, culture or religion. But this is a lacklustre Bill, which does the minimum needed to clear up the immediate mess of this Government’s making. [Interruption.] As I said, it does the minimum necessary. It is better than nothing—it is a very small step in the right direction—but it does not go as far as the Government should to introduce the reforms that are needed.
The right hon. Lady had been Lord Chancellor for eight months, but she had so little grip of her Department that she not only did nothing to stop the Sentencing Council’s new guidelines, but was not even aware of them. Her representative had met the Sentencing Council just two days earlier. What were they doing at the Sentencing Council, if they were not there to stop such proposals? How is the right hon. Lady running her Department, if she was not even informed of the new guidelines?
The proposals had changed during the process. The Lord Chancellor, unlike me and the Business Secretary, has actually been a practising lawyer. She will understand that there is a substantial difference between saying that a pre-sentence report may be particularly important, and stating, as a requirement, that such a report will normally be considered necessary, given the effect that statement has, and the triggers for appeals against sentences. Those changes were made almost at the point when the right hon. Lady became Lord Chancellor, yet eight months later, she had done nothing to stop them and was not even aware of them.
This Bill stops only the narrowest and worst aspects of the guidelines from applying. If the Government were actually serious about taking action, they could have done so much more quickly. They did not even need to take action; an omission would have been sufficient. On 28 March, when my right hon. Friend the shadow Lord Chancellor brought forward his private Member’s Bill, all the Government Whips had to do was not shout “Object” in order for it to go forward. It would have restored proper ministerial oversight and, through the Minister, parliamentary oversight over sentencing guidelines. That would have allowed Parliament to take control of this fundamental matter.
James Wild
My hon. Friend is right; the issue is not just these guidelines. In the last Parliament, we legislated to increase the maximum sentence for causing death by dangerous driving to life imprisonment, after an offender killed three members of my constituent’s family and was given a sentence of only 10 and a half years. Does my hon. Friend agree that we need a broader power, so that where Parliament’s intent is not recognised by the Sentencing Council, we can act?
Mike Wood
Clearly, Parliament needs to have oversight of revisions to sentencing guidelines, so that they reflect the will of Parliament.
The Government failed to act and have now brought forward this lacklustre measure. In the past few months, my hon. and right hon. Friends have uncovered multiple instances of two-tier principles being applied to bail, probation and other judicial matters. This is not a one-off, or a whistleblowing “fix it and move on” situation; it is systemic and endemic. We need much more radical reform than the Government are bringing forward today.
The Parliamentary Under-Secretary of State for Justice (Sir Nicholas Dakin)
I thank all right hon. and hon. Members on both sides of the House for their valuable contributions. I think what I heard at the end from the shadow Minister, the hon. Member for Kingswinford and South Staffordshire (Mike Wood), was support for this Bill, and I thank him for that. Today’s debate has been helpful; it has underscored the broad support for this legislation, and for the principle of equality before the law. Many Members—pretty much every Member who has spoken—underlined the importance of that principle. I am proud that my right hon. Friend the Lord Chancellor acted so swiftly to address this situation in a way that was courteous and respectful to all involved, and to get us to where we are today.
While we have had much agreement, the Mother of the House, my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott), for whom I have the highest regard, announced herself as being in a minority of one. I am sure that is not the case, but she drew attention to her serious concerns about disproportionality in the criminal justice system. I can say to her that we share her concerns about disproportionality. That is why my right hon. Friend the Lord Chancellor has announced a proper review of all the data, so we will know what actions will properly address that disproportionality and bring about change in a way that addresses the seriousness of the unfairness in the system to which she rightly referred.
Equality before the law is a fundamental principle of our criminal justice system. It is the Government’s policy and belief that it should be protected. We know that more must be done to address inequalities in the justice system, and we are absolutely committed to tackling racial disparities across the criminal justice system. We are also taking steps such as increasing diversity in our staff and working with the judiciary to make sure that our appointments are reflective of the society we serve. That has included supporting under-represented groups in joining the judiciary and the magistrates, and has involved the Ministry of Justice and partners running widely supported outreach programmes to reduce barriers to individuals joining. However, we need to do much more. I commend my right hon. Friend the Mother of the House for keeping us on notice, and I promise her that we will deliver.
The hon. Member for Eastbourne (Josh Babarinde), who speaks for the Liberal Democrats, reminded us, as indeed did my hon. Friend the Member for Hartlepool (Mr Brash), that these guidelines were nodded through by the previous Conservative Government. The hon. Member for Eastbourne also reminded us of our inheritance of an underfunded probation and court system, which has led, in his words, to a rationing of pre-sentence reports. I agree with him that the debate should be about how we move to universality of pre-sentence reports, not about rationing. Of course, none of this debate alters the fact that independent judges can ask for pre-sentence reports whenever they feel they are necessary. Indeed, in her opening speech, the Lord Chancellor made it clear that capacity is being increased, quite properly, so that more pre-sentence reports can be done.
We had very helpful contributions from the Chair of the Justice Committee, my hon. Friend the Member for Hammersmith and Chiswick (Andy Slaughter), and the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright). Both of them drew attention to the importance of pre-sentence reports in identifying the most appropriate and effective sentence for individual offenders. The Chair of the Select Committee gave us the full timeline of this affair to date, and a good analysis of where we are with the Bill. I agree with him that we will have more opportunity to look at matters in detail in Committee. Likewise, the right hon. and learned Member for Kenilworth and Southam drew attention to his concerns about the breadth of the Bill. Again, we will have an opportunity to examine them further in Committee.
My hon. Friend the Member for Stoke-on-Trent South (Dr Gardner) raised very serious concerns about issues relating to pregnant women, and was pleased that the Bill does not affect Court of Appeal case law in that respect. In fact, nothing in the Bill, as she helpfully reminded the House, prevents judges from requesting PSRs for pregnant women. Judges will continue to be able to request PSRs in cases where they ordinarily would, including appropriate cases involving pregnant women. We would expect that to continue.
I am happy to have heard so much support for the Bill. There will be a drop-in for MPs on Monday about the next stages of the Bill, at which Members can have any questions answered, and can feed into the process before Committee stage next week. This emergency legislation, while a small Bill, is of great significance. It will stop the Sentencing Council’s updated guidelines on pre-sentence reports from coming into force, and will safeguard against the risk of differential treatment arising from their use. The action taken by the Government on this issue underscores our commitment to equality before the law, which all hon. Members who have spoken today have underlined, and which is most important. It is the ancient principle on which our justice system was built. I commend the Bill to the House.
Question put and agreed to.
Bill accordingly read a Second time.
Sentencing Guidelines (Pre-sentence Reports) Bill: Programme
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Sentencing Guidelines (Pre-sentence Reports) Bill:
Committal
(1) The Bill shall be committed to a Committee of the whole House.
Proceedings in Committee, on Consideration and on Third Reading
(2) Proceedings in Committee of the whole House shall (so far as not previously concluded) be brought to a conclusion three hours after their commencement.
(3) Any proceedings on Consideration and proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion four hours after the commencement of proceedings in Committee of the whole House.
(4) Standing Order No. 83B (Programming committees) shall not apply to proceedings in Committee of the whole House, to any proceedings on Consideration or to proceedings on Third Reading.
Other proceedings
(5) Any other proceedings on the Bill may be programmed.—(Gerald Jones.)
Question agreed to.
Sentencing Guidelines (Pre-sentence Reports) Bill
Wednesday 30th April 2025
(2 days ago)
Commons ChamberSentencing Guidelines (Pre-sentence Reports) Bill 2024-26 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 30 April 2025 - (30 Apr 2025)
16:16 - The House divided: - Ayes: 86 / Noes: 222 - Question accordingly negatived.
16:30 - The Committee divided: - Ayes: 88 / Noes: 226 - Question accordingly negatived.
16:50 - The House divided: - Ayes: 214 / Noes: 3 - Question accordingly agreed to.
The Second Deputy Chairman of Ways and Means (Caroline Nokes)
I remind Members that in Committee they should not address the Chair as Madam Deputy Speaker. Please use our names when addressing the Chair. Madam Chair, Chair and Madam Chairman are also acceptable.
Clause 1
Sentencing guidelines about pre-sentence reports
Sir Jeremy Wright (Kenilworth and Southam) (Con)
I beg to move amendment 1, page 1, line 6, leave out
“different personal characteristics of an offender”
and insert
“an offender’s membership of a particular demographic cohort.”
The Second Deputy Chairman
With this it will be convenient to discuss the following:
Amendment 3, page 1, line 7, at end insert—
“(2A) After subsection (7) insert—
‘(7A) In the case of guidelines within subsection (4) about pre-sentence reports, the Council must, after making any amendments of the guidelines which it considers appropriate, obtain the consent of the Secretary of State before issuing sentencing guidelines as definitive guidelines.
(7B) In any case to which subsection (7A) applies, the Secretary of State may—
(a) consent to the issuing of guideline as definitive guidelines,
(b) refuse consent for the issuing of guidelines as definitive guidelines, or
(c) direct the Council to issue the guidelines in an amended form as definitive guidelines.
(7C) Where the Secretary of State has consented to the issuing of guidelines under subsection (7B)(a) or has directed the Council to issue guidelines in an amended form under subsection (7B)(c), the Council must issue the guidelines as definitive guidelines in the appropriate form”.”
This amendment stops sentencing guidelines about pre-sentence reports coming into force unless approved by the Lord Chancellor.
Amendment 2, page 1, leave out line 10 and insert—
““a particular demographic cohort’ may include those related to—”.
Amendment 4, page 1, line 13, at end insert—
“(d) status as part of a group that may have experienced trauma from experiences of racism or discrimination—
(i) inter-generationally and relayed to the defendant, or
(ii) as a result of important historical events which may have had a greater impact on those from specific groups and cultures.”
This amendment would ensure that sentencing guidelines about pre-sentence reports cannot include a defendant’s status as part of a group, particularly not if this involves considering events that may not have impacted the defendant personally.
Clauses 1 and 2 stand part.
New clause 1—Independent review—
“(1) The Secretary of State must arrange for an independent review to be carried out of—
(a) the effects of the changes made to section 120 of the Coroners and Justice Act 2009 by section 1, and
(b) sentencing guidelines about pre-sentence reports.
(2) The Secretary of State must, after consultation with the Sentencing Council, appoint a person with professional experience relating to pre-sentence reports to conduct the review.
(3) The review must be completed within two years of the passing of this Act.
(4) As soon as practicable after a person has carried out the review, the person must—
(a) produce a report of the outcome of the review, and
(b) send a copy of the report to the Secretary of State.
(5) The Secretary of State must lay before each House of Parliament a copy of the report sent under subsection (4)(b) within one month of receiving the report.”
Sir Jeremy Wright
It is worthwhile at the outset of all debates on this Bill to restate that it is about pre-sentence reports that give information to sentencers that may be used in sentencing decisions, not about the passing of sentences themselves. Specifically, the Bill is about the guidelines issued by the Sentencing Council to sentencers about the circumstances in which a pre-sentence report should normally be asked for, and about the sort of information about an offender which such a report may provide and which may be appropriate to consider and take into account before deciding on an appropriate sentence in that offender’s case.
There has been broad agreement—I see the Mother of the House, the right hon. Member for Hackney North and Stoke Newington (Ms Abbott), in her place, so I will not say unanimity—that an offender’s ethnicity, race, culture or faith are on their own not that sort of information and that the Sentencing Council was wrong to suggest that pre-sentence reports should be awarded on that basis. I would argue that is because, even if there may be points to make about the treatment or experience of members of the ethnic, faith or cultural group to which the offender in question happens to belong, what is relevant to the sentencing of that offender can only be the treatment or experience to which the particular offender has themselves been subject, not whether they have arisen in the cases of other members of the same group who are not before the court. That is effectively the impact of amendment 4 in the name of the shadow Minister, my hon. Friend the Member for Bexhill and Battle (Dr Mullan). That is why the Government are right to seek to exclude even from the process of asking for a pre-sentence report—let alone from passing sentence itself—the making of decisions based only on membership of such a group. That is after all what the Government have said this Bill is for.
These groups are described in the explanatory notes to the Bill as “particular demographic cohorts”. Paragraph 8 says,
“The Bill is intended to ensure that Sentencing Guidelines are drafted in such a way as to prevent differential treatment and maintain equality before the law. It does this by preventing the creation of a presumption regarding whether a pre-sentence report should be obtained based on an offender’s membership of a particular demographic cohort, rather than the particular circumstances of that individual.”
Despite that explanation in the explanatory notes, the Bill goes further than that by prohibiting the Sentencing Council from including in a sentencing guideline any
“provision framed by reference to different personal characteristics of an offender.”
That is what clause 1(2) says in inserting language into the Coroners and Justice Act 2009. I think that language is significantly wider in impact than reference to membership of particular demographic cohorts—undesirably so, in my view. That is why I have tabled amendment 1, which would adopt the language used in the explanatory notes.
Let me explain why I think that would be preferable. My starting point is that I do not believe all personal characteristics are inappropriate to consider in a sentencing decision. There is, of course, much more to be considered in a sentencing decision than simply information about the offender, particularly the seriousness of the offence and its consequences, but relevant information about the offender is needed as part of the process. It surely cannot be right, then, to prohibit the Sentencing Council from encouraging sentencers to find out more about some of the personal characteristics that are relevant in reaching a more informed and therefore better sentencing decision—for example, a physical or learning difficulty, or a brain injury from which an offender will not recover.
The relevance of that information is not just in forming a fuller picture of the offender to be sentenced, but in assisting a sentencer to know whether that offender is capable of carrying out aspects of a community order, including work in the community, which the sentencer may want to consider as a potential sentencing option. It is worth underlining of course that the ordering of a pre-sentence report—whatever it says when it is produced—does not bind the hands of a sentencer to do as it recommends, but in reality, without one a sentencer’s options are often more limited. That is why guidance on when to ask for a pre-sentence report matters.
Dr Luke Evans (Hinckley and Bosworth) (Con)
I defer to my right hon. and learned Friend’s experience, but is there not an argument for every case to have a pre-sentence report in order to truly understand what an individual has faced and whether there are any mitigating factors? I appreciate that that could create a backlog for these services, but is it not one possible solution to the problem that the Sentencing Council was worried about—namely, that different cohorts might have different sentencing outcomes?
Sir Jeremy Wright
My hon. Friend makes a fair point in relation to offenders who hover on the border between community sentences and custodial sentences, but he will know that, in the Crown court at least, the majority of such offenders already have a pre-sentence report. Of course, there are also offenders who come before the courts for sentencing and it is blindingly obvious either that a custodial sentence will follow, or that neither a community sentence nor a custodial sentence is realistically in prospect, so I do not think it right to say that we should have a pre-sentence report in every case, but there is already in law a presumption that pre-sentence reports should be ordered unless it is unnecessary to do so. What we are seeking to do here is respond to a very specific set of circumstances that have arisen as a result of a Sentencing Council decision. As he may have heard me say on Second Reading, I do not think that the Sentencing Council handled this well, and as a result we are having to do something that we would otherwise not have to do.
Sentencing offenders is, in all circumstances, a difficult business. The fact that different offenders receive different sentences, even for the same offence, is not necessarily evidence of a defect in sentencing practice as a result of guidelines or otherwise, but is more likely a reflection of the reality that every case and every offender is different. We should not, I suggest, try to stop judges reaching the appropriate conclusion, assisted by Sentencing Council guidelines, in each case before them.
Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)
Nobody is trying to stop judges sentencing in individual cases. All the Sentencing Council was seeking to do was ensure that judges and magistrates had the maximum amount of information before coming to a decision on the sentence.
Sir Jeremy Wright
Yes, I think the right hon. Lady is right that that is what the sentencing guidelines were aiming at, but I am afraid that the way in which they were phrased rather missed the mark, in my view. It is perfectly true to say that it is a good thing in most sentencing cases to get as much information as possible, but the sentencing guidelines have, as she will appreciate, particular influence on sentencers, who are obliged to follow them unless doing so is not in the interests of justice. The tone that is set by the Sentencing Council in the guidelines that it drafts gives a good indication to sentencers about the sorts of things that they ought to take into account in sentencing. As she heard me say—I think this is an important point to make—we are talking about the ordering of pre-sentence reports and not about sentencing itself.
Andy Slaughter (Hammersmith and Chiswick) (Lab)
It is a pleasure to take part in the Committee stage of this short Bill. On Second Reading, only a few days ago, I set out my views on the merits or otherwise of the Bill; how it affects the role of the Sentencing Council; the council’s consultation on this guideline; and the response to that consultation by the then Government, through their sentencing Minister, and by the Justice Committee, through my predecessor as Chair, Sir Bob Neill KC.
I also regretted the way that the Bill has been used to undermine judicial independence, and to allow ad hominem attacks on judges under the guise of belated objections to the guideline. I am not the only person to raise these concerns, and I agree entirely with the article on this matter by Sir Bob in The Times last Thursday. I do not propose repeating any of his arguments; nor do I need to spend a long time on the amendments tabled for debate. Those proposed by the official Opposition do no more than continue on another front the culture war that is the obsession of the shadow Lord Chancellor in his quest for higher office.
I am more sympathetic to the new clause in the name of the Liberal Democrat spokesperson, the hon. Member for Eastbourne (Josh Babarinde), who is an important member of the Justice Committee. Given the fractured nature of the debate around the Bill, and the testy relationship between the Sentencing Council and the Ministry of Justice, it may be sensible to review the effect of the Bill, but I am not sure we need to put that into legislation. Indeed, the sentencing landscape is about to shift fundamentally with the imminent publication of the independent sentencing review, which is swiftly to be followed by a sentencing Bill. I suspect that issues raised by this Bill will get swallowed up in that process, and the Lord Chancellor has indicated that it may include a review of the role of the Sentencing Council.
I do not want to stir the pot further, but I observe that had the Sentencing Council been prepared, without the threat of legislation, to postpone implementation of the guideline, all these matters might have been dealt with in one Bill, and in the light of David Gauke’s recommendations. The parliamentary and ministerial time that has been spent debating a relatively narrow point could, in my view, have been better spent on other matters requiring urgent attention in our courts and prisons.
Sir Ashley Fox (Bridgwater) (Con)
Does the hon. Gentleman accept that the reason why we are here today is an error of judgment by the Sentencing Council, on which it refused to back down until threatened with legislation? Does the amendment proposed by the shadow Justice Secretary not offer greater protection to the public from future errors of judgment by the Sentencing Council?
Andy Slaughter
As I say, I do not want to repeat everything I said on Second Reading. I made a case then for why the Sentencing Council had behaved quite properly. It was complimented by many people—including the Justice Committee, on which the hon. Gentleman serves—for the way it conducted its consultation. I have a great deal of sympathy with the council and its chair, who were somewhat surprised by the reaction at that stage, the guideline having been approved by pretty much everyone who considered it at that time.
On the views of the hon. Gentleman and other members of the Justice Committee, whose opinions I have a great deal of time for, the Sentencing Council was a little stubborn when confronted with the Lord Chancellor’s view, as well as those of other Members of the House, and it could have acted to prevent us all needing to discuss this today; as I say, there are many other matters that need our attention.
On the amendments in the name of the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright), as I would expect from a distinguished former Attorney General, his amendments go to the central issue in the Bill, which is whether it does what the Government intend it to do. I hope the Minister will address the issue of what a “personal characteristic” is, as opposed to a particular demographic cohort, and the question of what characteristics are caught by clause 1.
I will take a few minutes, if I may, to add some related questions on which I am seeking the Minister’s guidance. First, I turn to the effect of the Bill on the sentencing guidelines already in force. The effect of the Bill goes beyond the imposition of the community and custodial sentences guideline and future guidelines; it would also render unlawful the inclusion of provision framed by reference to different characteristics of an offender in all definitive sentencing guidelines by the Sentencing Council that have already been issued and are in force. The potential retrospective effect of the Bill on guidelines already in force could create legal uncertainty as to their lawfulness.
There are two main examples of overarching guidelines in force that could be caught by the Bill: the guideline on sentencing children and young people, and the guideline on sentencing offenders with mental disorders, developmental disorders or neurological impairments.
In relation to offence-specific guidelines, a significant number contain mitigating factors framed by personal characteristics that have expanded explanations referring to the need to order a pre-sentence report—for example, an explanation for the mitigating factor of “age and/or lack of maturity” in the aggravated burglary guideline. By way of another example, the explanation of the mitigating factor of pregnancy, childbirth and post-natal care in the same guideline states:
“When considering a custodial or community sentence for a pregnant or postnatal offender…the Probation Service should be asked to address the issues below in a pre-sentence report. If a suitable pre-sentence report is not available, sentencing should normally be adjourned until one is available.”
Sir Ashley Fox
I have already recorded my support for the principle of this Bill, which is unfortunately necessary to uphold the principle of equal justice. I speak in support of amendments 3 and 4, which would further strengthen this legislation.
Amendment 3 would give the Justice Secretary the power to prevent future errors of judgment by the Sentencing Council. It would require the council to secure ministerial consent before issuing any sentencing guidelines concerning pre-sentence reports. We should be clear that that is not a measure aimed at politicising justice. However, we must ensure democratic oversight of a body that has shown itself to be capable of committing a serious error of judgment, which led to the situation today. The reason why we are legislating is that the Sentencing Council’s guidance proposed treating offenders differently based on their ethnic, cultural or religious identities. That is wrong.
Ms Diane Abbott
The Sentencing Council has at no point suggested treating defendants differently according to their ethnicity or religion. All it has tried to do is ensure that judges and magistrates have the maximum information.
Sir Ashley Fox
The Sentencing Council says that if, for example, someone is a white, Christian male, they are less likely to benefit from a pre-sentence report than if they were a member of a religious or ethnic minority. I believe that that is wrong.
Ayoub Khan (Birmingham Perry Barr) (Ind)
Does the hon. Member know that any defendant before the courts who has no previous convictions, despite the seriousness of the offence, is entitled to a pre-sentence report?
Sir Ashley Fox
I am grateful to the hon. Member for his intervention. As a former solicitor, I am familiar with that provision, and I agree that any defendant who has not yet received a custodial sentence should have the benefit of a pre-sentence report. However, imagine two criminals who both have a criminal record, but one is a member of a religious or ethnic minority and one is not. The guidelines propose treating them differently, and that is not justice.
Dr Evans
Is the fact not that the sentencing guidance said that a pre-sentence report would normally be considered necessary, and then went on to talk about race and religion? Making those distinctions immediately apparent in sentencing guidance, which could mean that a white Christian male would be treated differently if they committed the same offence as someone of a different ethnicity, is the fundamental problem.
Sir Ashley Fox
Indeed. I am grateful to my hon. Friend for making that point; the point I wish to make to the Committee is that all defendants should be treated equally. It should not be a matter of whether or not they are a member of an ethnic or religious minority.
The Sentencing Council did not withdraw the guidance on principle, and it did not acknowledge its error. It was forced to backtrack only after public and political pressure, largely from the shadow Justice Secretary, my right hon. Friend the Member for Newark (Robert Jenrick). Even then, the council continued to defend the policy’s rationale in private communications to the judiciary. That is not accountability—it is evasion. That is precisely why amendment 3 is so vital. We cannot allow this to happen again, and Parliament must have a say when guidance threatens the impartiality of our legal system.
Amendment 4, which addresses the content of sentencing guidance itself, is equally important. The amendment would make it illegal for sentencing decisions to consider a defendant’s group identity, particularly in reference to historical discrimination that has no bearing on their individual case. Current bail guidance from the Ministry of Justice already advises courts to consider the trauma suffered by individuals whose relatives experienced racism or cultural discrimination. It even refers to “important historical events” and their supposed differential impact on specific ethnic or cultural groups. That approach undermines the principle that people should be judged as individuals, not as members of a group. Amendment 4 would draw a clear legal line: mitigating factors in sentencing must relate directly to an individual’s actions and circumstances. Inherited identity or injustices not experienced by a particular convicted criminal should not be relevant to the sentence passed by the court.
Race, religion or cultural background should not determine whether someone is sent to prison, and it should not determine whether or not someone should benefit from a pre-sentence report. The Lord Chancellor has argued that the current Bill allows her to “move at pace” to reverse the worst aspects of the Sentencing Council’s proposals, but this is not just about moving fast; it is also about ensuring that we never face this situation again. Amendments 3 and 4 are essential if we are serious about protecting the most basic principle of a free society, which is equality before the law. Without them, the Bill addresses the symptoms, but not the cause. As such, I urge the Committee to support those amendments and reaffirm our commitment to equality before the law.
Ms Abbott
I entirely agree with Members who are making the case that we should all be equal before the law. The problem is that the figures show that that is not the case, and it has not been the case for decades. If we look at the statistics for the numbers of people in prison, black people make up 12% of the prison population, yet we only make up 4% of the general population. That tends to raise the concern that we are not equal before the law across the whole custodial and criminal justice system. I remember that years ago, before some Members were in the House, you could not say anything about institutional racism in the police force and how black people were treated by the police. It took Stephen Lawrence and the Macpherson inquiry to get politicians and people who speak for the state to even acknowledge that there was such an issue as institutional racism in the police force.
Siân Berry (Brighton Pavilion) (Green)
I associate myself with every single thing that the Mother of the House has just said, because I could not possibly live up to it. I genuinely believe that this Bill will undermine efforts to ensure that equality before the law is a reality for everyone. It flies in the face of expertise and of the painstaking, authoritative work of the Sentencing Council —a rightly independent body run by, and for, the judiciary. This is a strange and populist Bill that is undermining and delaying good, well-evidenced independent guidelines for effective sentencing that would have made our justice system more fair, rather than less.
I will start my objections to clauses 1 and 2 standing part of the Bill—I am essentially opposing the Bill as a whole—by commenting on the process. We have before us a single-page Bill that in its specificity and intent cannot but bring to my mind how the current President of the United States is using executive orders to interfere intrusively and intricately in the rightly independent decision making of other bodies. This is a micro Bill that micromanages. I worry what else we might see from this Government if such an example is set today. On Second Reading, the shadow Justice Secretary was not shy of telling us about his next targets, which include the long-standing “Equal Treatment Bench Book”. The hon. Member for Hammersmith and Chiswick (Andy Slaughter) has outlined other guidelines that might be immediately affected if we pass this Bill today.
My second objection is about the substance of the Bill, which is primarily contained in clause 1. I cannot believe that Ministers and shadow Ministers are unaware that achieving fair and equal outcomes does not mean treating everyone exactly the same. That principle is so fundamental that I think I learned it through the round window. I cannot believe they are unaware that systemic racism and unconscious bias are real things that still affect people at every stage of the criminal justice system in the United Kingdom in 2025. They must be aware that the good practice that we put together must mitigate those things, or else it will compound them.
I do not believe that the Government as a whole think that the findings of the independent Lammy review of 2017 are untrue, or that they and a wealth of other evidence did not demonstrate the need for guidelines of this sort to provide information to help mitigate the impact of systemic racism and prejudice. Yet here we are, being asked to vote for legislation that essentially bans this evidence and these principles from being part of independent judicial guidelines.
Dr Luke Evans
My concern and that of Opposition Members is that the guidance gave examples where pre-sentence reports would “normally be considered necessary” and picked out an identity of a religion or a minority, thereby entrenching racism back into the system. That is the very aim that the hon. Member purports to not want to see. That is the fundamental argument that the Government and the Opposition are putting forward. We do not want to see this situation made worse.
Ms Abbott
Just to respond to the point that the hon. Member for Hinckley and Bosworth (Dr Evans) has just raised, the guidelines did not pick out race and ethnicity. In fact, they listed a number of circumstances in which a pre-sentence report might be considered appropriate, such as someone facing their first custodial sentence, someone who is under 25, someone who is a woman, pregnant, a primary carer or a dependent relative, someone who has said they are transgender or someone who may have addiction issues. Far from the Sentencing Council picking out race and ethnicity, that was only one in a long list of circumstances in which it suggested a pre-sentence report might be appropriate.
Siân Berry
To return to the intervention from the hon. Member for Hinckley and Bosworth (Dr Evans), it is difficult for some to realise that with these guidelines, the definition of “normal” has flipped away from the male, the white, the Christian and the majority to shine more of a light on people who are parts of minorities and might have experienced systemic problems leading up to the sentencing decision. That is the point of the guidelines. That is how we act in an anti-racist way. It is how we put together policy that mitigates the great problems that the Mother of the House, the right hon. Member for Hackney North and Stoke Newington (Ms Abbott), has outlined and we know well.
In contrast to this rushed Bill, the process that led to the now suspended new Sentencing Council guidelines was excellent: the document was consulted on widely; the Justice Committee looked at it; and it was given the green light by a Conservative Government, of which the shadow Justice Secretary was a member. Before I am intervened on, I am aware that a small change was made, but in essence the same document has come forward and the same principles were enshrined in the document that was proposed and approved. There was basically consensus that more use of pre-sentence reports should be made for people suffering from systemic injustices, that particular groups might be in greater need of them, and that judges should be permitted and encouraged to ask for such reports for those groups in more circumstances.
I want to talk about another group who will suffer from the delay caused by the Bill suspending the guidelines. I do not know when we will get new guidelines, but there will be more harm to women, families and children, who were all given more specific focus in the new—now suspended—guidelines. I have worked for some years on the problems and injustices facing women in the criminal justice system. I am concerned about the serious consequences that will come from any delay to these long overdue changes to further widen the use of pre-sentence reports and to make those reports easier for these groups. There will be serious consequences not only for too many people with these characteristics or circumstances—however we define it—but for wider society too. Will Ministers tell us about the impact of this delay on women, families, pregnant people and other groups named? When will we get new guidelines that include them? How many people will be harmed in the meantime? This delay has already taken some weeks.
Some Members will be familiar with the seminal 2007 Corston report about women with particular vulnerabilities in the criminal justice system. Incidentally, that document reminds us in its introduction:
“Equality does not mean treating everyone the same.”
The Sentencing Council guidelines were about to help plug a gap that still remained in terms of addressing the recommendations and themes of the Corston report. Indeed, in its commentary, the Sentencing Council rightly points to deeply concerning evidence of this problem. I am aware of difficulties judges have had in justifying delays and adjournments to go and get pre-sentence reports. The old guidance pushed for often impossible same-day reporting back from the Probation Service and cautioned against adjournments. With this delay to the new guidelines, will it be 2027—20 years after Corston—before the old guidelines are fully removed? How many women might be harmed in the meantime?
As far as I can see, the shadow Justice Secretary has scored a major win today, seizing this issue to stage another culture war ambush against another minority. Instead of standing by judges and by important principles we have all known for a long time—instead of simply allowing these guidelines to be trialled while the concerns being raised were addressed calmly—this Government have essentially put an executive order-style Bill before us now for its remaining stages. There was not even time on Second Reading for opponents like me to point that out.
I am sorry, but I believe that this Bill represents nothing less than a rushed and extraordinary capitulation by this Government to hard-right propaganda. People will suffer injustice as a result. It is profoundly worrying to see the Government legislating in this manner, micromanaging justice in ways that are led by—let’s face it—dog whistles, rhyming slogans and disingenuous propaganda. I will support new clause 1, but I sincerely hope that other Members will join me in voting against this Trumpian Bill and showing our respect for the independence of judges and magistrates on these matters. It is vital that we do something today to stand up for evidence-led policy, judicial independence and genuine equality before the law.
Ayoub Khan
Let me begin by drawing Members’ attention to my entry in the Register of Members’ Financial Interests; I am a member of the Bar.
I will align my comments with those of the Mother of the House, the right hon. Member for Hackney North and Stoke Newington (Ms Abbott), and the hon. Member for Brighton Pavilion (Siân Berry). The Bill, and the amendments, do not in reality tackle two-tier justice in this country; in fact, they risk entrenching it. Our justice system is founded on a principle that we all claim to uphold—fairness and equality before the law—but today we are being asked to support legislation that fundamentally undermines that principle.
Let me be absolutely clear. This is not a matter of opinion. Lord Justice William Davis, the chair of the Sentencing Council, has written candidly about the issue. He has said, for example, that defendants from minority ethnic backgrounds are statistically more likely to receive harsher sentences than their white counterparts for a similar offence. That is not the opinion of politicians or pressure groups, but a warning from within the senior judiciary itself. The Bill ignores that reality. Worse still, it undermines one of the very tools designed to correct it: the pre-sentence report.
Dr Luke Evans
From a medical perspective, there would be a genetic predisposition. Is the hon. Gentleman seriously suggesting that people would, on a genetic basis, find themselves affected by the law purely because they were black? The comparison he has just made is exactly that, from a medical standpoint. I do not think he would really make such a suggestion, and I would certainly be against that position.
Ayoub Khan
The hon. Gentleman has made his point, but as a criminal practitioner who has frequented courts over the last 20 years, I have seen disparities. I have seen sentencing which, in my view, was not fair. Lived experiences among certain communities are just as important as those of other minorities, whatever their backgrounds. Ultimately, who has decided that this is an important element that needs to be taken into account in the sentencing guidelines? This went through all the consultation under the last Government. People had seen it, and agreed to it. It did not raise a concern back then, so why should it now?
Addressing inequality is not the same as creating inequality. It is, in fact, the only way in which to ensure real equality—to ensure that justice is not just blind in theory, but fair in practice. I know some will argue that we need to understand the root causes of disparity, and they are right: that longer-term work is essential. However, while it is going on we must act in the present. We must allow the experts to do their jobs and support the guidance that they, not we, have developed through years of experience, research and consultation.
This Bill is not just misguided; it is regressive. I cannot and will not support legislation that sidelines expert insight, ignores data and compromises the principles of fairness that we all claim to defend in the name of political convenience. Justice must not only be done but be seen to be done, and right now the communities that face this disparity will no doubt be concerned about the Government’s approach.
Dan Tomlinson (Chipping Barnet) (Lab)
First, I acknowledge that disparities in outcomes in our judicial system are a real issue and merit serious attention. I recognise the work of the Lammy review in 2017, as well as the conclusions of the Ministry of Justice’s 2020 report, “Tackling Racial Disparity in the Criminal Justice System”, which found disparities in how people from minority ethnic groups are treated in the judicial system. It is important that these issues continue to have the focus that they merit.
However, I am glad that the Bill has passed its Second Reading and that we are progressing through its remaining stages today. I am firmly of the view that it is not for the Sentencing Council to make policy decisions on this matter, for those are the domain of politicians and must remain so. The Government should be able to make political decisions and implement them, and the ballot box is the right place for us to be held to account.
What I find refreshing about the continued passage of this Bill is that we are showing that politicians do not have to be jelly-like in the face of blockages to their desire to make political decisions. At the same time, I support the unamended passage of the Bill, because it finds a way to thread the needle with a targeted intervention. Amendment 3, tabled by the shadow Secretary of State for Justice, goes too far and would undermine the independence of the Sentencing Council.
Ms Diane Abbott
My hon. Friend refers to blockages. How can he describe Members of this House, and people in the community who are trying to stand up for a fair and just criminal justice system, as blockages?
Dan Tomlinson
I do not think that anyone in this House is a blockage—far from it. The point I am making is that I believe that this House should be the place where political decisions are made, and that politicians should make decisions about important things that matter to people in this country.
It is my view that the Sentencing Council is an important body. Crucially, however, it is not political, and I think that if the guidelines had gone through, it would have undermined the important principle of equality before the law. That is a political decision, and Members of this House hold different opinions, but it is for us to contest them in this place. I am glad the Government are making sure that we can make progress on the things that we believe need to be pushed forward for the British people, and I hope that the Bill will pass unamended today, because the precise changes that it proposes would prevent sentencing guidelines from being changed in ways that undermine equality before the law. I do not think that the amendments tabled by the Opposition are necessary, because they take things too far.
With this Bill and much else besides, it is time for us to show that moderate politics, which is the politics of this Government, does not have to be like soup—weak and watery, and impossible to hold on to—but can instead be the politics of action and delivery. I welcome the continued passage of this Bill and urge Members to vote for it today.
Madam Deputy Speaker (Judith Cummins)
I call the Liberal Democrat spokesperson.
Josh Babarinde (Eastbourne) (LD)
I made the Liberal Democrat position on this very short Bill, and on this issue more widely, abundantly clear in the last debate that we had on this matter: we believe in equality before the law, we believe in the rule of law, and we believe that no one is above the law. That is why we believe that anyone facing the prospect of a custodial sentence should be the subject of a pre-sentence report. We believe that the state has that duty before dispensing its power to deprive someone of their liberty.
There is no world in which judges and magistrates having more information about an offender, whoever they are, and their circumstances is a bad thing. That is why it is an injustice that the use of pre-sentence reports had fallen from 160,000 in 2015 to just 90,000 by 2023, which is a cut of 42%. That has left judges and magistrates with fewer resources and insights than ever with which to go about their work. Less informed sentencing means less satisfactory sentencing outcomes. It means more reoffending, more victims and more turmoil, and that is unacceptable. That is not justice.
This is a product of the under-investment in our Probation Service—it compiles the reports—which was gutted under the Conservative Government. I therefore welcome the fact that the Minister, in his closing speech on Second Reading, agreed with me that
“the debate should be about how we move to universality of pre-sentence reports, not about rationing.”—[Official Report, 22 April 2025; Vol. 765, c. 1019.]
I will come to new clause 1 shortly.
Sir Ashley Fox
The hon. Member will be aware that any sentencing magistrate or judge can request a pre-sentence report, so I would say that his use of the word “rationing” is inappropriate.
Josh Babarinde
I do not know whether the hon. Member has read the Sentencing Council’s summary of the responses to the draft guidance that was in consultation under the Conservative Government, but it paraphrased magistrates and judges as saying that driving the universality of pre-sentence reports would be challenging in the light of the limited resource for the Probation Service and of the court backlogs. I would suggest that he consult that document to see the phrases used by those legal professionals.
Dr Luke Evans
How much would universality cost? Have the Lib Dems calculated how much it would cost?
Josh Babarinde
If the hon. Member for Bridgwater (Sir Ashley Fox) was making the point that these reports should exist come what may, the cash should be ringfenced and earmarked for the use of judges and magistrates to request them, but he and the hon. Member for Hinckley and Bosworth (Dr Evans) cannot have it both ways. We know that if we best tailor a sentence to whether it will result in somebody not reoffending—if we best match the sentence to an offender—we can spend to save. If we can reduce reoffending by ensuring that people get the appropriate sentence, we will keep people out of our crumbling prisons who do not need to be there because they will not reoffend in the first place. We can spend to save.
I regret that this issue has become a political football and one that is sowing the seeds of division. Plainly and simply, this is about the shadow Justice Secretary attempting to hijack our criminal justice system for his own political ends. So desperate is he to score political points that he uses his platform in this House to undermine judges by name, in the full knowledge that they cannot respond and that there is a formal process by which judicial complaints can be investigated and addressed. So desperate are the Conservatives to score political points that they paint judges as activist villains and are working to undermine public confidence in them just because the shadow Justice Secretary does not agree with their rulings.
Dr Kieran Mullan (Bexhill and Battle) (Con)
I would expect the Liberal Democrat spokesperson to at least acknowledge that such references are to judges in their capacity as leaders of the Sentencing Council, not to judges sitting in individual cases. That is an important distinction to make when parliamentarians comment on their conduct.
Josh Babarinde
I refer the hon. Member to the comments the shadow Justice Secretary made at the last Justice questions—I think the hon. Member was not in attendance for that—when he named a specific judge and made a critique of or complaint about them outside the formal processes.
Ayoub Khan
Judges have been vilified, as have others sitting on the Sentencing Council, by Members of this House. Does the hon. Member agree that, if there is to be any vilification, it should be of the Conservative Members who formed the previous Government, who held the consultation and agreed to the guidance?
Josh Babarinde
I do not agree that vilification is the right approach from any side of the argument. This debate should be conducted with respect and courtesy, and I feel that that was missing from some of the comments I just referred to. Absolutely, there must be accountability. Indeed, the previous Government were held accountable in huge respect at the general election, where they suffered the biggest defeat in their history. So desperate is the shadow Justice Secretary to rise to the top of our democracy that he is prepared, in the ways I have described, to undermine our democracy itself.
Siân Berry
I hope the hon. Member was listening to my speech when I talked about the harm that might be caused by the delay in bringing in the really excellent parts of the new guidelines that might help women and families. Are the Liberal Democrats asking for a delay, or would they like to support bringing in the parts of the guidance that are agreed as soon as possible?
Josh Babarinde
One problem with the proposals is that consultation has been minimal. They come from a rushed place. They come from a place of responding to a culture war. We are voting on people’s liberties and we need to consider the issues in great detail before responding, not in a knee-jerk way. What I can say, and what I have discussed with Members, including the Lord Chancellor, is that, for example, in the guidance on pre-sentence reports, the circumstances of victims of domestic violence, modern slavery and so on should be considered. As I said at the very beginning of my speech, on pre-sentence reports we should lean toward a presumption of universality rather than one of rationing, so that for all the groups and individuals that have just been mentioned, and more, judges can access a pre-sentence report.
We make the call I have just made not only because we have grave concerns about the impact of the proposed changes, but because we remain steadfastly committed to evidence-based policy making. Against the backdrop of cynical culture wars and leadership manoeuvres, it is more important than ever for the Government to assess the outcomes of this policy, with assessments based on statistics, data and evidence as opposed to dogma and ideology.
To conclude, we must not dance to the tune of the populists or the culture war fanatics, or undermine our legal institutions. As such, our position has not changed since last time and we will act accordingly. We will defend our judicial system and its independence, but we reject short-term reforms that fail to address the wider issues of disproportionality at play.
Dr Mullan
I rise to speak in support of amendments 3 and 4 in my name and in the name of the shadow Secretary of State for Justice, my right hon. Friend the Member for Newark (Robert Jenrick), and of Conservative colleagues.
As MPs from across the House have made clear, the draft guidelines produced by the Sentencing Council would have led to an unacceptable two-tier justice system in which defendants were treated differently on the basis not of their crimes, but of their racial, cultural or religious identity. In fact, the record will show that two-tier justice did exist for several hours, because this issue was managed so shambolically that the guidance came into effect ahead of its formal withdrawal. That is not justice—it is a betrayal of the fundamental principle of equality before the law. It would have happened under the watch of this Labour Government and this Lord Chancellor but for the intervention of the Opposition, and in particular the shadow Secretary of State for Justice.
This Bill is necessary, but it is not sufficient. Instead of acting decisively to restore public confidence, after the Labour Government have been dragged to this Chamber to act at all, they now bring forward a half measure—a meagre response that falls short of what it should be. That is why the Opposition have tabled two important amendments.
Amendment 3 would ensure that in future, sentencing guidelines on pre-sentence reports cannot simply be issued by the Sentencing Council without democratic oversight, and would instead require the consent of the Secretary of State before coming into force. Why is that now necessary? The Sentencing Council has proven itself not just in the initial measures it proposed, but in its attitude and response towards parliamentary and public scrutiny, to be unable to sustain public confidence in its work in this area. It is one thing for a public body to possess operational independence and to seek to exercise that independence on a day-to-day basis; it is quite something else for a public body to choose not to exercise good judgment and make use of that independence to act with restraint in the face of widespread Government, Opposition, parliamentary and public concern. While they do, of course, have their merits, the actions of the Sentencing Council have brought to life the potential pitfalls of unelected quangos that are deaf to the concerns of the people who pay their wages and the politicians who represent them.
While this whole affair has no doubt been humiliating for the Lord Chancellor and the Government, the damage to public confidence in the leadership of the Sentencing Council is just as great. Despite what the hon. Member for Eastbourne (Josh Babarinde) said in his remarks on Second Reading, the Sentencing Council did not agree to pause the implementation of the guidelines to allow for a period of reflection—it outright refused to do so. He has misunderstood the sequence of events. The council paused only because we would have otherwise entered into a constitutionally unsustainable situation where people were being sentenced in the courts, with guidelines being legislated against in Parliament through emergency legislation. It was that direct threat alone that caused the council to pause and demonstrated its lack of judgment.
I am afraid that we must therefore act more broadly to constrain the Sentencing Council in future, pending any wholesale changes that may be forthcoming. That is why the shadow Secretary of State put forward a Bill that would have taken the necessary steps to return accountability of the body through the Lord Chancellor while wholesale reform could be undertaken. Labour chose to oppose that Bill. Today, it is out of scope for the Opposition to seek to introduce a similarly wide amendment, and we are therefore restricted to seeking to at least restore accountability where we can in this field.
The amendment would require that guidelines on pre-sentence reports drafted by the council must be expressly approved by the Secretary of State before they come into force as definitive guidelines—a basic safeguard of democratic accountability, ensuring ministerial oversight on sensitive sentencing matters. Without our amendment, history may repeat itself: the same council will be free to bring forward ideological frameworks that Ministers will be powerless to stop before the damage is done. Had these guidelines gone unchallenged, we would have tilted sentencing based on identity politics, undermining public confidence in the entire system.
Our amendment would create a crucial safeguard, ensuring that no future set of guidelines in this field, at least, could bypass ministerial accountability. I encourage those on the Government Benches who have made clear that they wish to see accountability restored across the work of the Sentencing Council to vote in support of amendment 3; doing otherwise would make clear that they are unwilling to follow through on their concerns with action.
Amendment 4 would make clear that sentencing guidelines on pre-sentence reports must not include consideration of a defendant’s status as part of a group that has experienced historical or intergenerational trauma. Why is this necessary? It would be deeply wrong to allow collective historical grievances to influence the sentencing of an individual today. This area is the latest frontier of identity politics, with the public being told that what should be given disproportionate focus in all sorts of domains—that what matters more than what is happening today, with the whole variety of challenges facing people of all creeds and colours—is, in fact, the past. Sentencing must focus on the actions, culpability and direct personal circumstances of the defendant before the court, not on sweeping assumptions based on historical events.
We are not able in this Bill to legislate across all the workings of the criminal justice system as much as we might like to. The events of the past few months have shown that what has happened with these guidelines was not a one-off. There is a creeping, systemic attempt to inject identity politics into our judicial processes, bail decisions, probation, and even training materials. If we do not confront this now, it will embed itself deeper and deeper into the foundations of our system. It is fundamental to the rule of law that justice looks to the individual, not to the group. It is fundamental that we deal in evidence, not in ideology.
Taken together, our amendments are designed to strengthen this Bill, to ensure that it is not merely a reactive measure, but, in this narrow area at least, provides lasting protection of the principle that justice must be blind, and must be seen to be blind. The public expect justice to be equal, not preferential. Our amendments will go further in helping to secure that.
We are in this Chamber today because the Lord Chancellor was not paying attention, and was then humiliated by the recalcitrant leadership of an unelected body turning its face against parliamentary and public concern. The Government should have acted decisively and immediately and we provided them with an opportunity to do so, but they failed to take it. Even now, we are faced with a Bill that does not do the full job. Our amendments are closing the gap between what the Lord Chancellor is offering and what is necessary—decisiveness in place of timidity. I urge the whole House and the Government to support them.
The Parliamentary Under-Secretary of State for Justice (Sir Nicholas Dakin)
It is a pleasure to serve with you in the Chair, Mrs Cummins. I wish to thank hon and right hon. Members for the points that have been made and the amendments that have been discussed, which I shall respond to in turn. I shall speak briefly to each clause and then remind us of why we are here debating this Bill.
In the last Parliament, the Sentencing Council consulted on a revised imposition guideline, which was due to come into effect on 1 April. The revised guideline includes additional guidance on when courts should request pre-sentence reports. It notes that pre-sentence reports will “normally be considered necessary” for certain offenders, including those from an ethnic, cultural or faith minority. The “normally be considered necessary” is replaced with “may be particularly important”, which the previous Government very much welcomed.
This Government note that a pre-sentence report is necessary. They agree that disparities exist in the criminal justice system. The reasons for that are unclear, but this is a matter for the Government, accountable to Parliament and to the ballot box, to address.
In effect, the revised guideline could have led to judges deciding whether to request a pre-sentence report based on an offender’s faith or the colour of their skin. The Lord Chancellor has been clear that this would be unacceptable, as it risks differential treatment. Singling out one group over another undermines the idea that we all stand equal before the law—a principle that has been in the foundations of our justice system for centuries, and that is why she acted immediately and quickly. By preventing the Sentencing Council making guidance on pre-sentence reports with reference to personal characteristics, this Bill helps to ensure equality before the law.
Clause 1 amends section 120 of the Coroners and Justice Act 2009. It provides that sentencing guidelines may not include provision framed by reference to different personal characteristics, including race, religion, belief or cultural background. Therefore, any existing guidelines that make reference to different personal characteristics will cease to have effect and the Sentencing Council is prevented from making such provisions in guidelines in the future.
The changes made by this clause prevent the Sentencing Council making policy about when pre-sentence reports should be obtained that risks differential treatment before the law, and which could undermine public confidence in the criminal justice system.
The sentencing code is clear that courts should obtain pre-sentence reports unless, in the circumstances of the case, it is unnecessary. The clause does not affect the independent judiciary’s ability to make decisions based on the personal circumstances of an individual offender, or determine where pre-sentence reports are necessary or desirable. Nor does it stop the Sentencing Council from advising, in general terms, that pre-sentence reports are sought in cases where the court would benefit from an assessment of an offender’s personal circumstances.
Catherine Atkinson (Derby North) (Lab)
Pre-sentence reports, as the Minister has set out, are important in considering punishments that can address offending behaviour and help reduce the likelihood of reoffending. But, very often, probation is stretched so thin that officers do not have time to complete them. What will the Minister do to ensure that, where a pre-sentence report is required, probation has the capacity to do that important work?
Sir Nicholas Dakin
My hon. Friend echoes much of what the hon. Member for Eastbourne (Josh Babarinde) picked up on earlier. Probation is a significant part of the landscape. That is why we are onboarding 1,300 more probation officers over the next year.
The Chair of the Justice Committee, my hon. Friend the Member for Hammersmith and Chiswick (Andy Slaughter), raised issues about the impact of the guidelines on existing guidelines. We expect that other guidelines will be affected by the Bill, including offence-specific guidelines related to mitigating and aggravating factors, which set out guidance about pre-sentence reports for specific cohorts. We will continue working with the Sentencing Council on the implementation of the Bill. We have had constructive discussions and will continue to do so.
As my hon. Friend the Member for Hammersmith and Chiswick referenced, the Bill’s explanatory notes point out, existing precedent is not changed where the courts have determined that pre-sentence reports are necessary or desirable. Such cases include: Thompson, where the Court of Appeal recently emphasised the importance of reports in sentencing pregnant women or women who have recently given birth; Meanley, in which the court referenced the value of pre-sentence reports for young defendants; and Kurmekaj, where the defendant had a traumatic upbringing, a vulnerability and was a victim of modern slavery. The Bill narrowly focuses on the issue at hand, putting beyond doubt the principle that we all stand equal before the law of the land.
Clause 2 is concerned with details about how the Bill will be enacted. The Bill will apply to England and Wales only, and its measures will come into force on the day after it passes. The Bill may be cited as the Sentencing Guidelines (Pre-sentence Reports) Act 2025 once enacted.
I thank the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright) for tabling his amendments and for the very thoughtful and comprehensive way in which he dealt with them. Amendments 1 and 2 would replace the term “personal characteristics” with “demographic cohort” to describe the type of provision about pre-sentence reports in sentencing guidelines that the Bill will prohibit. The Government have considered the proposed change to the wording very carefully and would like to take the opportunity to briefly explain the Government’s approach.
The Government’s objective is to help ensure equality before the law so that offenders are treated according to their own particular circumstances and not by virtue of their membership of a particular group. To ensure that the Bill prevents sentencing guidelines about pre-sentence reports including provision framed by reference to any specific personal characteristics of an offender, we have used the term “personal characteristics”. The Bill sets out that personal characteristics include race, religion or belief, or cultural background. However, this is not an exhaustive list. We accept that personal characteristics and personal circumstances have, over the years, been elided in different court judgments, and we are clear that it is intended to cover a wider range of characteristics including sex, gender identity, physical disabilities and pregnancy status.
The right hon. and learned Member for Kenilworth and Southam has rightly noted that the term “demographic cohort” is used in the Bill’s explanatory notes. However, the use of the term was not intended to narrow the definition of personal characteristics, and I believe it does not, though I note that he believes that it might do. Rather, it is a different term used to describe individuals who share certain personal characteristics.
Sir Jeremy Wright
I accept that the Minister is trying to give us clarity, so for the purposes of clarity is it the Government’s view that all personal characteristics can also be described as personal circumstances?
Sir Nicholas Dakin
No, that is not the Government’s view. “Personal characteristics” is a term that is understood and applied in other contexts, whereas “demographic cohort” is a term that, on balance, the Government feel is more imprecise and would ultimately need to be defined with reference to a group with shared personal characteristics. Therefore, I understand where the right hon. and learned Gentleman is coming from, but from the Government’s point of view, the amendments do not add anything to the drafting of the Bill and risk causing further confusion. As he pointed out in his helpful contribution, there is a danger of getting into detailed semantics, which probably does not help any of us.
Sir Jeremy Wright
I take on board the Minister’s warning, and I am not sure whether this will make it any better. I think he is saying that the term demographic cohort is a subset of personal characteristics, but personal characteristics are not the same as personal circumstances. Is that right?
Sir Nicholas Dakin
If we had used the phrase demographic cohort, we would have to define what that means, whereas personal characteristics is a phrase that already has a level of definition and is therefore preferred by the Government.
I turn to the similar issue raised by my hon. Friend the Member for Hammersmith and Chiswick. We carefully considered whether the Bill should be narrower than referring to personal characteristics—for example, an offender being from a cultural minority—but in the end we felt that was not helpful.
As such, while I am grateful to the right hon. and learned Member for Kenilworth and Southam for suggesting alternative wording, the Government remain of the view that, having considered it carefully, the term personal characteristics is the most appropriate way of capturing the issues raised by the guideline.
Andy Slaughter
Will the Minister clarify the point in relation to pregnancy? He said—it is in the explanatory notes—that it would be right for a sentencer to follow Thompson and order a pre-sentence report where a woman is pregnant or has recently given birth, but that, following the passage of the Bill, it will be incorrect for the Sentencing Council to make recommendations along those lines for sentencers to follow. I do not quite see the difference.
Sir Nicholas Dakin
The Court of Appeal has made it clear, and, as my hon. Friend said, it is right to follow Thompson in those circumstances.
While I am grateful to the right hon. and learned Member for Kenilworth and Southam for raising and rightly exploring this issue in Committee, I hope that he will not press the amendment to a vote.
Amendment 3, tabled by the right hon. Member for Newark (Robert Jenrick) on behalf of the official Opposition, would require the Sentencing Council to obtain the Secretary of State’s approval before issuing any sentencing guidelines about pre-sentence reports. Again, I referenced the helpful words of the right hon. and learned Member for Kenilworth and Southam, who said we should tread carefully in this territory and that the separation of powers needs to be very much respected. Therefore, while carefully considering the case for mandating that the Sentencing Council obtain the Secretary of State’s approval, I am not persuaded that that is appropriate at this particular time.
As the Lord Chancellor has set out, this case has highlighted that a potential democratic deficit. That is why we are currently assessing the Sentencing Council’s wider role and powers for developing sentencing guidelines, with recent developments and imposition guidelines in mind.
Dr Mullan
I gently suggest to the Minister that if there is a risk of a democratic deficit, surely the thing to do is to act now in the short term and unpick it later if he feels he has overreached.
Sir Nicholas Dakin
We certainly do not feel that we have overreached. We are acting in a timely and effective way. As the debate has demonstrated, there are issues of detail that need to be properly explored. The Lord Chancellor has done the right thing in announcing a review that will have a look at things in proper time; that will take place.
Given the special role of the Sentencing Council and the significant policy and constitutional issues involved, it is right that we take the time to consider whether more fundamental reform is needed, alongside considering wider recommendations that come out of the independent sentencing review. I am not convinced that it will be proper to deal with the issue now through this fast-tracked legislation, nor am I convinced that legislating in a piecemeal way would be helpful, noting that the amendment of the right hon. Member for Newark applies just to sentencing guidelines about pre-sentence reports when there may be other things that we need to look at. To be clear, we are keeping all options on the table and are willing to legislate further in a more comprehensive way if necessary. I therefore urge the Opposition not to press this amendment.
Amendment 4, also tabled in the right hon. Member’s name, would prevent the Sentencing Council from framing sentencing guidelines about pre-sentence reports with reference to groups that may have experienced trauma from historical racism or discrimination. While we have carefully considered the case for adding this restriction to the Bill, we are not persuaded that it is necessary. We have taken a general approach in the Bill to preventing sentencing guidelines about pre-sentence reports from being framed by reference to any personal characteristic of an offender. The Bill specifies that personal characteristics include race, religion or cultural background, but that is not an exhaustive list.
More widely, I appreciate that the right hon. Member for Newark has taken a keen interest in wider guidance across prisons and probation that touches on different experiences, including those specified in the amendment. The Government are absolutely clear on the need to ensure equality before the law. Wider work is going on to review relevant policy and guidance, and we will update practices where necessary. I therefore urge the Opposition not to press the amendment.
New clause 1 would require the Secretary of State to arrange an independent review into the restrictions the Bill places on the Sentencing Council’s ability regarding pre-sentence reports, which are framed by reference to offenders’ different personal characteristics. I thank the hon. Member for Eastbourne for tabling the new clause. Although we have carefully considered the case for such a review and I agree that it is important to carefully think through what the Bill’s effects, I am not persuaded that a review is necessary because the direct changes made by the Bill are very limited in nature.
To recap, the Bill helps protect equality before the law by ensuring no offender receives differential treatment regarding pre-sentence reports based on their personal characteristics. That reflects a fundamental principle that does not need to be reviewed. The Bill does that by restricting the powers of the Sentencing Council to issue sentencing guidelines about pre-sentence reports. It will prevent guidelines from, for example, creating a presumption around whether a pre-sentence report should be obtained based on an offender’s personal characteristics, rather than all the circumstances of the offender before the court.
For the avoidance of doubt, this Government support the use of pre-sentence reports and we have publicly committed to creating more capacity in the probation service to ensure it is able to do the valuable work that includes preparing pre-sentence reports. We are also happy to continue to work with the hon. Member for Eastbourne on disparities in the criminal justice system and the use of pre-sentence reports more generally.
We fully support the increased use of PSRs in our courts. PSRs include an assessment of the offender’s behaviour and the risk they pose, and the recommendations for sentencing options. It is a valuable tool, as many Members have said, in helping to ensure a sentence is tailored to an individual offender and their circumstances.
Equality before the law is a fundamental principle of our criminal justice system. It is the Government’s policy and belief that that should be protected. I again welcome the contribution from the Mother of the House, my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott), supported by the hon. Members for Brighton Pavilion (Siân Berry) and for Birmingham Perry Barr (Ayoub Khan), to keep our feet to the fire on tackling disproportionality. I confirm again that this Government take very seriously tackling disproportionality in the criminal justice system. That is why the Lord Chancellor has commissioned a review of the data on disparities in the justice system to better understand the drivers of the problem. I know that my right hon. Friend does not need my encouragement to keep going on this one, so I look forward to her continuing to hold us to account as we move forward.
I will also be clear on what the Bill does not do, to underscore its limited changes. Nothing in the Bill restricts the court’s pre-existing ability to request pre-sentence reports, nor the Sentencing Council from advising in general terms that a pre-sentence report should be sought where a further assessment of the offender’s personal circumstances would be beneficial to the court. The Bill does not affect Court of Appeal case law about the types of cases where pre-sentence reports are necessary or desirable, as we have covered previously. There is recent relevant case law covering vulnerable defendants, pregnant women and women who have recently given birth, and young defendants. Furthermore, the Bill will not prevent judges from requesting pre-sentence reports in cases where they ordinarily would, including in appropriate cases involving, for example, pregnant women, as well as those involving young people or domestic abuse. I welcome the comments from my hon. Friend the Member for Chipping Barnet (Dan Tomlinson) on those issues.
With such considerations in mind, the Government do not consider the proposed review to be necessary. However, as the Lord Chancellor has set out, she is carrying out a review into the wider role and powers of the Sentencing Council, so I can reassure the hon. Member for Eastbourne that there will be further opportunities to discuss issues surrounding the Sentencing Council in the House. I therefore hope that he will withdraw the new clause.
The First Deputy Chairman of Ways and Means (Judith Cummins)
I call Sir Jeremy Wright to wind up.
Sir Jeremy Wright
I think—in gratitude to all those who have spoken—that we have got to a place where the Minister has told the House that there is some territory, which at the moment is being described as “personal characteristics”, into which the sentencing guidelines may not trespass. That is not the same as specifically referring to someone’s personal circumstances, and is a broader area than the question of whether they are a member of a particular demographic group.
Sir Nicholas Dakin
I beg to move, That the Bill be now read the Third time.
Let me first take this opportunity to thank all Members of this House who have spoken in support of this important Bill. I am particularly grateful for the support expressed on Second Reading, as well as to all the hon. and right hon. Members who have contributed to this afternoon’s Committee proceedings. It is not yet a month since the Sentencing Council’s imposition guideline was due to come into effect. The Lord Chancellor followed up her concerns immediately with action. As Members from all parts of the House have acknowledged, had the Government not acted quickly to introduce this Bill, the guideline would have risked differential treatment before the law in this country.
I put on record my thanks to the Sentencing Council and in particular its chair, Lord Justice William Davis, for the constructive conversations on this issue and for pausing the guideline while Parliament had its say, as it is doing today. I also thank officials who have worked on this Bill, including Andrew Waldren, Stephen Toal, Jack Hickey, James Metter, Clare Taylor, as well as the Bill manager, Katherine Ridley, and my excellent private secretary, Emily Brougham. This Government strongly support the use of pre-sentence reports, which judges are required by law to obtain except in circumstances where they consider such a report unnecessary. We also acknowledge that there are disparities within the criminal justice system that must be addressed. However, those are matters of policy, and it is right for the Government to seek a policy response to these issues. That is why we brought this Bill forward, and I commend it to the House.
Dr Mullan
It is a pleasure to speak on behalf of His Majesty’s Opposition on Third Reading, following on directly from the Committee of the whole House, where Government Members rejected our amendments to strengthen the Bill. We now know the strength of the appetite on the Labour Benches to tackle this challenge properly and comprehensively here and now: there is not one. In truth, we knew that already.
The Government had an opportunity weeks ago to restore democratic accountability to the Sentencing Council through the private Member’s Bill of the shadow Secretary of State for Justice, my right hon. Friend the Member for Newark (Robert Jenrick). They rejected that opportunity, and earlier today they rejected even the more modest strengthening we proposed. That should not be a surprise. Labour has a Prime Minister who is first and foremost a lawyer, not a leader. He is a lawyer steeped in the philosophy of securing political change through legal activism. That is the very approach that the Lord Chancellor has been forced to bring in emergency legislation to curtail. That approach is why the appetite for proper action is so limited. The legislation before the House is a fig leaf to hide the truth that a Labour party led by Keir Starmer will always have to be dragged kicking and screaming to tackle the judicial activism that he has long championed—[Interruption.]
Madam Deputy Speaker (Judith Cummins)
Order. The shadow Minister must be heard.
Dr Mullan
Thank you, Madam Deputy Speaker; they do not want to hear it.
The root cause of the issue is that the Prime Minister appointed an Attorney General—the Government’s own Law Officer—who is steeped in judicial activism. The Prime Minister himself practised in a chambers that relished it and wholeheartedly supported its expansion case by case.
For anyone interested in a treatise on the risk of this approach—from someone much more qualified than me, as I am sure the House will agree—I encourage them to listen to Lord Sumption’s Reith lecture. His analysis on the divide between matters that should properly be the domain of politics and matters for law could not be more pertinent. He said:
“It is a vice of some lawyers that they talk about law as if it was a self-contained subject, something to be examined like a laboratory specimen in a test tube, but law does not occupy a world of its own. It is part of a larger system of public decision making. The rest is politics. The politics of ministers and legislators of political parties, of media and pressure groups, and of the wider electorate.”
Lord Sumption went on to say:
“The Courts have developed a broader concept of the…law which greatly enlarges their own constitutional role. They have claimed a wider supervisory authority over other organs of the State. They have inched their way towards a notion of fundamental law overriding the ordinary processes of political decision-making, and these things have inevitably carried them into the realms of legislative and ministerial policy. To adopt the famous dictum of the German military theorist Clausewitz about war, law is now the continuation of politics by other means.”
Be in no doubt: this whole sorry episode has been an exquisite further example of that mentality, this time from the Sentencing Council and its members as part of the wider judiciary establishment. The Lord Chancellor has failed to act decisively today. If she continues to refrain from taking decisive action, we will be here again and again, with the Opposition making sure, on each and every step of the way, that voters know where the sympathies of the Labour party and its leader lie: not with the ordinary, law-abiding citizen who expects equal treatment under the law and the democratically elected politicians of this country deciding on policy, but with activists and campaigning lawyers who want to wrestle control from them.
The Bill is barely adequate—barely. We will not oppose it, because it is better than nothing—and at least it tells the public everything that they need to know about those who sit on the Government Benches, and about the mentality of the man leading them.
Question put, That the Bill be now read the Third time.