Sentencing Guidelines (Pre-sentence Reports) Bill

2nd reading
Wednesday 7th May 2025 Lords Chamber

Second Reading

15:52

Moved by

[Lord Timpson]

That the Bill be now read a second time.

[The Minister of State, Ministry of Justice (Lord Timpson) (Lab)]

My Lords, I want to extend my thanks to the many noble Lords who have already contributed to debates in this House on this matter, which have provided me and the Government with valuable food for thought. I am also grateful to the noble Lords with whom I have spoken about this Bill, who have shared their wise counsel and wealth of experience regarding the matters on which it touches.

I know that all noble Lords will be looking forward to my noble friend Lady Nichols’ maiden speech. I welcome her to this place, and I know we will all benefit from her vast experience in public service.

I will start by recapping how we got here, as I believe that it is important to understand the Government’s intention behind the Bill. The Sentencing Council’s imposition of community and custodial sentences guideline helps judges, when sentencing an offender, to determine whether to impose a community order or a custodial sentence. In deciding which threshold has been met, judges are required by law to obtain a pre-sentence report, except in circumstances where the court considers such a report to be unnecessary. Pre-sentence reports are used to give the courts more context for the offending behaviour in a given case to aid judges and magistrates in making informed sentencing decisions. The current imposition guideline makes it clear that pre-sentence reports offer valuable assistance to the court when it decides whether to impose a community or custodial sentence.

Under the last Government, the Sentencing Council consulted on a revised imposition guideline. This guideline was due to come into effect on 1 April this year and includes additional guidance on when courts should request pre-sentence reports. It noted that pre-sentence reports will “normally be considered necessary” for certain offenders, including those from an ethnic, cultural or faith minority. In effect, this could have led to offenders receiving differential treatment in terms of access to pre-sentence reports based on their faith or the colour of their skin. These changes were welcomed by the previous Administration.

By contrast, both the Lord Chancellor and I have been clear that that would be unacceptable—not least for the victims, who put their trust in the criminal justice system. Singling out one group over another undermines the idea that we all stand equal before the law, a principle that has been at the forefront of our justice system and our society for centuries. This is the position that the Lord Chancellor communicated in person and in writing to the Sentencing Council. The Lord Chancellor first used her existing power, meeting the Sentencing Council’s chair on 13 March to ask it to reconsider its approach. Unfortunately, the council declined to amend the guidelines significantly or re-consult on its approach. While the Sentencing Council remains of a different opinion from the Government, I am grateful to its chair, Lord Justice Davis, for the engagement he has had with the Lord Chancellor and for the cordial conversations that I know we will continue to have.

I am very thankful that, following its engagement, the Sentencing Council has paused implementation of the revised imposition guideline while Parliament has its say. I am also grateful to noble Lords who have shared their expertise in this area with me. It is clear that the intention behind the Sentencing Council’s changes to the guidelines was an honourable one: to address the inequalities in our justice system. The issue of disparities in the criminal justice system is a serious matter, and one which this Government are determined to address.

However, this is a question of policy, one which must be addressed by government, accountable to the public and Parliament, and via the ballot box. As noble Lords will be aware, this issue has prompted debate here, in the other place and publicly on the correct roles and responsibilities of the Sentencing Council, and the Lord Chancellor is carefully reviewing and considering all options. I am sure that that will be discussed more in your Lordships’ House in the months ahead.

However, I want to be clear that this is beyond the scope of the narrow Bill at hand today. The Sentencing Council, although only 15 years old, holds an important position within the justice system, and any changes to its function and powers must be considered carefully. I know that several noble and learned Lords have had roles on the Sentencing Council and its predecessor and will have valuable views to add as this is considered. It would not have been right to address this through this targeted and narrow legislation.

I am proud of our judiciary, and I know that they are the envy of the world: rightly respected for their independence, impartiality and fairness. I know that the Lord Chancellor takes her oath to defend the independence of the judiciary very seriously. I reassure noble Lords that nothing we are considering in terms of the future of the Sentencing Council will change the Government’s clear commitment to defend the rule of law.

I turn now to what the Bill does. Clause 1 amends Section 120 of the Coroners and Justice Act 2009. It provides that sentencing guidelines about pre-sentence reports may not include provision framed by reference to offenders’ different personal characteristics, including race, religion, belief or cultural background. This would mean that any existing guidelines on pre-sentence reports which are framed by singling out personal characteristics would cease to have effect.

The Sentencing Council will therefore not be able to make such provision in future guidelines. The changes made by this clause therefore prevent the Sentencing Council making policy about when pre-sentence reports should be obtained. That would risk differential treatment before the law and would undermine public confidence in the criminal justice system.

In bringing forward the Bill, the Government’s objective is to help ensure equality before the law, so that offenders are treated according to their individual circumstances and not by virtue of their membership of a particular group. We have therefore used the term “personal characteristics” in the Bill to ensure that sentencing guidelines about pre-sentence reports cannot include provision framed by reference to any specific personal characteristic of an offender, and we have accompanied this by listing some characteristics in the Bill, including race, religion or belief, or cultural background.

However, this is a non-exhaustive list, intended to give context to the term. The Government intend that the Bill will also apply to a wider range of characteristics including sex, gender identity, physical disabilities and pregnancy. We have also used the term “demographic cohort” in the Bill’s Explanatory Notes, to help provide additional context to the meaning of “personal characteristics”.

I will now make clear what the Bill does not do. It 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. The Bill does not interfere with the courts’ ability to request a pre-sentence report. The Sentencing Code is clear that courts must obtain pre-sentence reports unless they consider it to be unnecessary. The Bill does not affect this presumption. The independent judiciary will retain discretion to make decisions about where pre-sentence reports are necessary based on the facts of the case. The Bill does not stop the Sentencing Council advising, in general terms, that pre-sentence reports should be sought in cases where the court would benefit from an assessment of an offender’s personal circumstances.

Also, as detailed in the Explanatory Notes, the Bill does not change existing precedent where the courts have determined that pre-sentence reports are necessary or desirable. Recently, in R v Thompson, the Court of Appeal emphasised their importance in sentencing pregnant women or women who have recently given birth. In R v Meanley, the court referenced the value of pre-sentence reports for young defendants. In R v Kurmekaj, the defendant had a traumatic upbringing and vulnerability, and was a victim of modern slavery. The court considered that these factors meant that a pre-sentence report should have been requested. Instead, the Bill narrowly focuses on the issue at hand.

I welcome the use of pre-sentence reports, which are a valuable tool for sentencers in appropriate cases. The number of pre-sentence reports declined by 44% between 2013 and 2023. The Probation Service is under a huge amount of pressure, which is indicative of wider capacity issues in the system. This Government have acted quickly to create capacity within the Probation Service to ensure that our hard-working probation officers have more time for vital work such as this. We have announced plans to recruit a further 1,000 probation officers in the coming year, on top of the 1,300 extra probation officers recruited in the last financial year. I am continuing to work with the Probation Service to ensure that it can deliver a high and consistent standard of service.

We are also working to better understand what drives disparities in the criminal justice system. The Sentencing Council has acknowledged that the causes of disparities in sentencing outcomes are “unclear”. Understanding the data is the key first step to deciding what we must do to address these disparities. The Lord Chancellor set out during the Bill’s Second Reading in the other place that she has commissioned a review of the data held by the Ministry of Justice on disparities in the justice system. On the timeline for the review, noble Lords can rest assured that we are working at pace on this and will update the House in due course. I assure your Lordships that this is an issue which the Government take incredibly seriously and are determined to address. However, this cannot be done at the expense of equality before the law.

In conclusion, by preventing the Sentencing Council making guidelines on pre-sentence reports with reference to personal characteristics, this Bill ensures that we all continue to stand equal before the law. I urge noble Lords to support the Bill and the principle that drives it—of equality before the law. I beg to move.

16:03

[Lord Jackson of Peterborough (Con)]

My Lords, it is a pleasure to have the opportunity to contribute to this important debate. I welcome the Minister to his place and look forward very much to the maiden speech of the noble Baroness, Lady Nichols of Selby. I broadly welcome this legislation while regretting its necessity and that we have reached such an unsatisfactory juncture. I am indebted to Policy Exchange for its excellent paper on this issue, Two-Tier Justice.

The impasse between the Lord Chancellor and the Sentencing Council was significant in its problematic challenge to parliamentary sovereignty, its undermining of the faith and trust that the public must have in the judicial system, and the concept of equal treatment under the law. It further undermined the long-established and quite proper constitutional convention of judicial independence and the separation of powers between the judiciary, legislature and the Executive.

The imbroglio arose from the consultation process on the sentencing guidelines, which was over two years in duration and culminated in January this year. The Sentencing Council’s wilful refusal, enunciated in its letter to the Lord Chancellor on 27 March, to amend its proposed guidelines demonstrated an obtuse disregard for democratic proprieties and quite legitimate criticisms of its actions in formalising two-tier sentencing and differential treatment by the courts based on membership of ethnic, faith and cultural minorities. This is at a time when the public are acutely aware and particularly mindful of fairness and appropriateness, or otherwise, in a number of high-profile criminal cases as reported in the media. This issue transcends party-political differences. It is about whether an elected Parliament and Government Ministers who are accountable to the electorate should be pre-eminent in setting policy in judicial and relevant related matters.

It is appropriate to make the point that pre-sentence reports are a vital tool for magistrates and judges, not least in securing a more comprehensive assessment of an offender and balancing the decision to impose a non-custodial sentence or a term of imprisonment. The previous 2017 imposition guidelines quite rightly made no reference to different cohorts that should receive a pre-sentence report. The new guidelines reference gender, ethnicity, pregnancy, transgender status, and addiction issues, as well as domestic abuse, modern slavery, grooming and other exploitation issues.

The automatic granting of a pre-sentence report to some groups but the availability of only discretionary powers to others was and is wrong. These proposals were divisive, racist and corrosive towards community cohesion. Essentially, if you are a white man who is not religious, you are, or were, under a material and substantive disadvantage in the proposed sentencing regime. The Lord Chancellor was right to highlight this in her letter to the chairman of the Sentencing Council, Lord Justice William Davis, on 6 March.

The fundamental question is: why were these new rules proposed, and on what evidential basis? The Sentencing Council’s 2023 Review of Trend Analysis of the Sentencing Council’s Imposition of Community and Custodial Sentences Guideline found that

“for those groups with larger volumes of offenders sentenced, there is predominantly no clear evidence of differential impacts of the Imposition guideline”.

The noble Baroness, Lady Falkner of Margravine, chair of the Equality and Human Rights Commission, was surely right to state:

“The correct constitutional position would be ... that a judge already has tools at their disposal to seek pre-sentencing reports and that they … do so based on an individual case on a case-by-case basis, rather than categorising certain groups”.


Indeed, we have existing primary legislation in place to allow judges to discharge their duties quite properly, with appropriate evidential discretion, via the Sentencing Act 2020.

The Sentencing Council consultation was flawed and inappropriate, dominated as it was by liberal, self-serving and partisan groups that disregarded the wider societal need for a criminal justice system which is fair, impartial, open and transparent. For the avoidance of doubt, it is not for a judge, however eminent, to unilaterally determine sentencing policy, especially when the Lord Chancellor objects. Parliament has never legislated for it, and it is clear that it is for the judiciary to interpret and apply the law and not to formulate policy on an ad hoc basis. It is for Parliament to set overarching sentencing policy and criminal justice policy while remaining aloof from sentencing of individual offenders by trial judges and magistrates—that also goes for the appellate courts.

So Lord Justice Davis’s rationale in interpreting the role of the Sentencing Council was erroneous. In his letter to the Secretary of State for Justice, Lord Justice Davis referred to the consultation process, stating:

“It was decided that to remove the list would have been contrary to the majority view expressed by consultees”.


That “majority view” among the consultees, that there should be a specified list of groups that automatically receive a pre-sentence report, is unsurprising. The consultation process received 150 responses, 40 of which came from charity or non-governmental organisations. They have every right, and perhaps a duty—organisations such as the Prison Reform Trust, Clinks, the Centre for Women’s Justice and the Howard League for Penal Reform are perfectly entitled—to put forward their views but the Sentencing Council should perhaps have had a more balanced view rather than looking just at the majority of opinion in this particularly niche and narrow consultation.

I think the role of the Government, Ministers and Parliament was misunderstood by the eminent Lord Justice Davis. He questioned whether it was in the power of the Minister to amend Section 1 of the Coroners and Justice Act 2009 in respect of proposing to the Sentencing Council that a sentencing guideline be prepared or revised by the council, and whether it was appropriate in this case. Although the legal advice that Lord Justice Davis intends to obtain has not, as I understand, been published, it seems on an ordinary reading of the legislation, given that the words of the statute are plain and unequivocal, to be a novel approach if the Lord Chancellor is not permitted to propose a revision of the guideline.

Lord Justice Davis also claims that the inclusion of specific cohorts in the imposition guideline is not

“a policy decision of any significance”,

but that is not the case. Even someone as distinguished as Lord Justice Davis must understand that he cannot unilaterally determine, in opposition to the Lord Chancellor, a policy that the Government are obliged to follow. He also says in his letter, rather oddly:

“All judges and magistrates are required to apply any relevant guideline unless the interests of justice require otherwise. In practice, the guidelines form the backbone of every sentencing decision made throughout England and Wales. There is general acceptance of the guidelines by the judiciary because they emanate from an independent body on which”—


this is an important bit—

“judicial members are in the majority. The Council preserves the critical constitutional position of the independent judiciary in relation to sentencing”.

He goes on to say:

“In criminal proceedings where the offender is the subject of prosecution by the state, the state should not determine the sentence imposed on an individual offender. If sentencing guidelines of whatever kind were to be dictated in any way by Ministers of the Crown, this principle would be breached”.


I believe that Lord Justice Davis is mistaken for the following reasons. First, the critical constitutional position of the independent judiciary relates to the sentencing of individual offenders, not the overarching policy. Secondly, Lord Justice Davis implies that the judiciary accept, and presumably follow, sentencing guidelines only

“because they emanate from an independent body on which judicial members are in the majority”,

and I believe that is wrong. Thirdly, the letter from the Lord Chancellor that Lord Justice Davis was replying to does not state or even suggest that Ministers should play any role in the sentences imposed on individual offenders. To suggest otherwise, as Lord Justice Davis does, is disingenuous, I suggest. Fourthly, and lastly, the sense that courts are not part of the state is not only wrong by any ordinary understanding of what the state consists of but is explicitly contradicted by the Courts and Tribunals Judiciary’s own website, which states:

“The justice system is one of the three branches of the state. The other two branches are the executive, or the government, and the legislature, which is the two Houses of Parliament”.


Presumably, when Lord Justice Davis refers to the state, he means the Executive.

It is right that the Government have taken swift action to legislate, but the Minister should also explain and look to the workings of his department, given that in the 12 months to January 2025, senior officials from the Ministry of Justice attended meetings of the Sentencing Council when these proposals were put forward, and yet they did not alert Ministers to the fact that the proposed guidelines would be completely unacceptable to both Conservative and Labour Government Ministers.

It is right that we open up and more closely examine the workings and membership of the Sentencing Council and that it is subject to proper scrutiny; for instance, with confirmation hearings in Parliament. We must make sure that something like this does not happen again. Guidelines for the future should be required to be confirmed by orders in Parliament before coming into effect. Finally, it is right that parliamentary sovereignty has been exerted in this case, while judicial independence remains protected. The Bill is a vital and timely intervention, and for that reason I am pleased on this occasion to support it.

16:16

[Baroness Hamwee (LD)]

My Lords, I start by saying how sorry I was to hear of the death of the noble and learned Lord—who I just think of as Terry—Lord Etherton. His words were always wise, measured and compassionate, and we will miss him. More positively, we look forward to the maiden speech of the noble Baroness, Lady Nichols.

This one-clause Bill provokes such strong feelings, particularly when there is much we can agree on, but our approach from the Liberal Democrat Benches differs a good deal from that of the noble Lord, Lord Jackson. This must be one of those situations where one really does not want to start from here, not only because I would like to rewind, but because we are expecting very soon the review of sentencing by David Gauke. That should be the basis for a debate about sentencing because the debate needs to be wider than this Bill.

We are very concerned about fast-tracking this legislation, which we do not see as necessary or desirable. That is a constitutional point. I am a member of the Constitution Committee. I think the only members who are able to talk today are my noble friend Lord Beith and I. That committee takes the view that fast-tracking is not necessary and says so in a report to the House that was agreed at about noon today and published at about the point that we started this debate. Obviously, the Minister is not going to be able to respond to it today, but I urge that the MoJ responds to the points made by the committee well before Committee stage so that it is properly before the House and considered.

Pre-sentence reports are important and ideally should be for everyone—unless, of course, the court considers that they are not necessary—but the Probation Service is very overstretched. The Lord Chancellor said she was clearing the way to free up capacity in the Probation Service, so we will be interested to know the details of at what cost that might be to the service’s other work. That in itself deserves debate.

The Justice and Home Affairs Committee of this House, in a report Cutting Crime: Better Community Sentences, spent a little time on pre-sentence reports. I was chairing the committee at the time. The Minister was very welcoming of the report when we debated it. I recall he said that he had read it three times. I suspect his workload is such that he does not manage that for many reports, but we appreciated that. We referred to pre-sentence reports and their purpose, which we described as

“providing an expert assessment of the nature and causes of the offender’s behaviour, the risk they pose and to whom”,

and so on.

Witnesses to our committee raised concerns about the quality of reports, in part because of the pressures on the service, meaning that sentencers—we took the view—do not have the confidence in them that they should have. If a report falls short, the sentencer might not be able to consider an offender as an individual. We heard of PSRs based on what was happening in offenders’ lives eight or nine months previously and not taking into account steps they had taken in that period. We were told in evidence of the view that they were a “tick-box exercise” and not being done in a “meaningful, person-centred way”.

Sentencers may include mental health treatment requirements and alcohol treatment requirements, both of which require the consent of the offender, and drug rehabilitation requirements, which require suitability conditions met by probation making a recommendation to the court. For a sentence to be rehabilitative—one of the objectives of sentencing—it is obvious that the PSR process needs time and the offender to be engaged. The committee said that PSRs

“are an essential part of the sentencing process. They allow courts to tailor sentences to individual circumstances and give sentencers confidence that specific requirements are suitable and available”—

that is another matter—“in their area”. The Government agreed. I stress “individual” because one has surely to consider the whole person, and how do you do that while excluding characteristics?

As well as agreeing on the importance of PSRs, I think most of us would agree on the importance of equality. But that does not mean starting from a point of equality. How can we ignore how people with some characteristics, in particular those picked out in Clause 1, are overrepresented in the criminal justice system? The Sentencing Council acknowledges this in correspondence, and so does the Lord Chancellor.

It is then argued that differential treatment on the basis of race or ethnicity offends the principle of fair treatment before the law. Is “fair” really a synonym for “equal”? I take the view that one has to recognise where there is inequality in order to address it, and addressing it does not always—and not in this context—mean treating everyone the same. As the Sentencing Council notes, there are inequalities in the sentencing regime, for instance around age, which the Bill does not spell out, although this of course comes within the non-exhaustive list that is not on the face of the Bill.

The council’s view is that

“providing a sentencer with as much information as possible about the offender is one means by which … disparity might be addressed”.

While the council agreed with the Government that

“any systemic issue relating to different ethnic groups will be a matter of policy”,

Lord Justice Davis, who has been referred to, said that sentencers must still

“do all that they can to avoid a difference in outcome based on ethnicity. The judge will be better equipped to do that if they have as much information as possible about the offender”.

The Constitution Committee is currently undertaking work on the rule of law, and I am assured by those who are far more expert than me that positive measures are not necessarily incompatible with the rule of law. To me, the term “personal characteristics”, without definition, is confusing. The division between characteristics and circumstances is very grey. What, for instance, is addiction? I think it is a characteristic. That would undermine treatment, to which I have referred.

The list is not exhaustive, as I have said, and that adds to the confusion. There is a risk of confusing characteristics under this Bill with protected characteristics defined for a different piece of legislation. The Constitution Committee is also critical of the Bill because of the uncertainty—I might say incoherence—in this area. I really look forward to the MoJ’s response to the points that we make in the report.

The committee also refers to retroactivity, which offends constitutionality. Can the Minister explain to the House what is to happen with pre-sentence reports that are currently—or will be at the point when the Bill becomes law, as I assume it will—in the pipeline, including reports that have been prepared but are not yet before the court? Are they to be reviewed or rewritten? It is really quite confusing to fast-track a Bill to such an extent that commencement is immediate; normally there is time for those affected by legislation to prepare.

I keep coming back in my mind to the question of how one can sentence without recognising the whole person. I also wonder how one can amend a one-clause Bill without being accused of wrecking it, but I know that my noble friend Lord Marks has been thinking about this very carefully, and I am hopeful that we will find a way to make it a Bill that is both coherent and accessible. I wish—not only for procedural reasons but because the focus should be on an effective, trusted system—that we were not starting from here, and I hope this is not the finishing point.

16:26

[Lord Thomas of Cwmgiedd (CB)]

May I add very briefly to the remarks of the noble Baroness, Lady Hamwee, about the late Lord Etherton? He was a lawyer of the highest ability. He had great skill and was a man of real quality. I worked with him for many years at the Bar, and as a colleague on the Bench. All those qualities were shown in abundance in what he achieved in that period. But he also achieved a great deal in this House and took on number of causes that some might not have found popular. He was a great man and will be greatly missed.

I turn very briefly to make three points about the Bill. First, although we have been accorded a long time to speak, I do not intend to take advantage of that to repeat what I already said at length prior to the Easter Recess. I explained then why I thought the Bill was not necessary, and I regret that the Government feel it is. I very much hoped then—and still hope today—that this issue can be resolved without legislation, but I will not repeat what I have already said to that end.

Secondly, I agree with the Minister that this is a very narrow Bill. That is no excuse for not getting it right, but it is a narrow Bill. It is important to note that it is not the occasion for the kind of wide-ranging issues such as those raised by the noble Lord, Lord Jackson of Peterborough, to be raised. Therefore, I do not intend to answer them. If they are raised on a subsequent occasion, that will be the appropriate time, but this is a narrow Bill.

I say that because I think it is important that the Sentencing Council and its predecessor bodies, the Sentencing Guidelines Council and the Sentencing Advisory Panel, have worked well, although I ought to declare that I was a member of the Sentencing Guidelines Council, had a hand in setting up the Sentencing Council and was its president for four years until 2017. If we look at what it has done and analyse the constitutional position, I do not believe there is any basis for making any real change. It has been a great success as it brings together two arms of the state, the judiciary and the Executive, under the supervision of the third arm, Parliament, in producing a very sensible way of dealing with balancing the role of Parliament in setting policy and the role of the judiciary in sentencing individuals. That is a complex issue, and I would like to leave it for an occasion where it properly arises. It does not arise today.

Thirdly—this point does arise today—there is the definition of personal characteristics. This has already been touched on by the noble Baroness, Lady Hamwee. I think it could, with advantage, be clarified. It would be helpful to understand why the definition is different to the definition of protected characteristics in Section 4 of the Equality Act. I note that the Minister has already referred to the remarks made by Sir Nicholas Dakin in the other place on 30 April, where he said

“we are clear that it is intended to cover a wider range of characteristics including sex, gender identity, physical disabilities and pregnancy status”.—[Official Report, Commons, 30/4/25; col. 388.]

There are a lot of other characteristics. Before trying to amend it, it would be helpful to have a clear explanation—I have given the Minister notice of this—of why the course chosen has been chosen.

That is more important in the light of paragraph 14 of the Explanatory Notes, as it uses the term “particular circumstances” of individuals in apparent contradiction to “personal characteristics”. I am not sure that I understand the difference. It would be helpful if the Minister could try to explain it. In any event, with that explanation, we can look forward to amending—I hope with considerable advantage—this part of the Bill without anyone being accused of wrecking it.

16:31

[The Lord Bishop of Gloucester]

My Lords, I declare my interest as Anglican Bishop for prisons. I am grateful to be speaking in this Second Reading debate. I too greatly look forward to the maiden speech of the noble Baroness, Lady Nichols. Having said that, I do not believe this is a debate we should be having at all. I do not believe this rather theatrical legislation is necessary.

In a world of sufficient resources, as has already been said, there would be comprehensive pre-sentence reports for everyone, to which careful attention would be paid in court. If we have to prioritise PSRs, then it makes sense to prioritise those we know are especially vulnerable, or where there is evidence of disproportionate outcomes from the justice system. Will the Minister comment on why he thinks there was such shock at this apparent two-tier justice with regard to ethnicity but not the other cohorts in the guidance, such as young adults and pregnant women? Do the Government believe the issues raised in the landmark report by the current Foreign Secretary almost eight years ago are now a thing of the past? Is there no role for judges in mitigating the issues raised in that report?

The use of the Sentencing Council guidelines apparently to feed a culture war is distressing. The allegation of two-tier sentencing based around race, religion, belief or cultural background is damaging to public understanding. This is already shaped heavily by media headlines and the shocking and extreme cases of violent crimes, which are not the norm. Public understanding of why and how criminal sentences are handed down is severely lacking, as evidenced by the Justice Select Committee in 2023 and a recent Prison Reform Trust report detailing a citizen jury exercise. My own experience of talking to teenagers in schools is that more information about sentencing results in more considered responses and a greater sense of engagement with what we are trying to achieve, which surely goes beyond mere punishment.

At the heart of the Christian gospel is a God who holds together both justice and mercy. We need a big long-term vision. Surely long-term vision must be about transforming lives and communities, and that includes victims as well as offenders, recognising that many offenders are also victims.

If we are committed to the transformation of society, we need to take account of the impact of sentencing on families and the wider community. I am not saying that people who commit crimes should not receive punishment, but I am saying that sentencing should be much more than this and give the best possible outcomes for society.

In a recent judicial critique focused on sentence inflation, four former Lords Chief Justice, including the noble and learned Lord, Lord Thomas, highlighted that people in prison are individuals, not statistics, and that the

“consequences of imprisonment on people’s lives—in prison and upon return to the community—need to be considered in the whole”.

They go on to say:

“Evidence suggests that what happens during and after a sentence, including rehabilitative interventions and resettlement support, is more important than sentence length”.


If we are to treat people in the justice system as individuals, that surely includes taking into account people’s circumstances, such as whether a woman is pregnant, and their characteristics, such as neurodiversity. I echo what was said about characteristics. We cannot pretend that circumstances and characteristics do not matter. Wise sentencing is threatened by this am-dram politics, and the Bill risks taking us backwards, not forwards. I firmly believe that we need less political control over sentencing, not more.

I urge the noble Lord to revisit the House of Commons Justice Committee’s 2023 recommendation of the establishment of an independent advisory body on sentencing. I would propose an additional step: a commitment from the Treasury, set out to Parliament, where Ministers propose to expand or lengthen custodial sentences against recommendations from the advisory board, thus resetting the relationship between politics and justice, including the public purse.

There is more I could say—much more—but I will end by engaging with the Government’s own rationale for this legislation. The Justice Secretary says that inequality in society is a matter for policy and not for the judiciary. How, then, will the Government create an equal society over their term of office so that these guidelines become redundant?

16:37

[Baroness Nichols of Selby (Lab) (Maiden Speech)]

My Lords, it is a profound honour to rise before noble Lords today and make my maiden speech in this esteemed Chamber. I am deeply grateful to my sponsors, my noble friends Lady Anderson and Lady Winterton, and to Black Rod and all the House staff, who have been so welcoming since my introduction—particularly the doorkeepers. I am grateful also to my noble friend the Leader, Lady Smith, and the Chief Whip, my noble friend Lord Kennedy, for their personal support since my peerage was announced. To be asked to join your Lordships’ House is a privilege I do not take lightly, and I intend to serve with the same dedication that has guided me throughout my life.

My journey to this moment has been shaped by my roots in Selby in North Yorkshire, a place that has defined who I am and the values I hold dear. It is a town built on industry, hard work and community, a place where people look out for one another and where solidarity is not just a word but a way of life. My connection to Selby runs deep. My father was born there, although his life was not always kind to him. His mother died from tuberculosis when he was six years old, and she was laid to rest in a pauper’s grave in Selby Cemetery —a stark reminder of the struggle so many families faced. My mother, one of 10 children from Spennymoor in County Durham, also knew hardship. Her father, a miner, lost his sight in a pit accident. Yet, even through adversity, my parents found strength, love and purpose. They met during the Second World War: my father was stationed at Burghfield Common and my mother was evacuated nearby. They married, settled in Selby and raised a family in a council house on one of the largest estates in the town. Their values, community resilience and public service shaped my path in life.

It was there that I attended Selby Abbey primary school, following in my family’s footsteps. I recently visited the year six group, who wanted to know about the House of Lords. My early years were filled with memories of the shipyard—yes, a shipyard—on the banks of the River Ouse, and the sight of workers leaving on bicycles as the buzzer sounded, a scene that spoke of industry and pride. But perhaps my most memorable early experience was the time when my mother, after a long walk into town, returned home only for my father to ask, “Where’s Wendy?” To her horror, she had left me outside Woolworths in my pram. Thankfully, I was still there, blissfully unaware that I had been momentarily misplaced.

My professional journey took me from catering college in Leeds and York. I became a school meals cook and then started work in the kitchens of a pit-top canteen at one of the five super-pits around Selby, and later moved into residential care for the elderly, following in my parents’ footsteps once more. It was at Carentan House, formerly a workhouse, where I truly found my calling. I saw at first hand the importance of dignity in care and the power of collective action to bring about change. It was there that I became active in the National Union of Public Employees, which later became UNISON. For over four decades, I have worked for North Yorkshire Council, during which I have fought for the rights of working people, serving as branch secretary in North Yorkshire and in 2015-16 serving as president of UNISON.

Public service has always been in my blood. Like my parents before me, I became a Labour councillor, though my route to office was far from conventional. In 1999, a miscounted vote led to an incorrect result being declared. It took a trip to the High Court and the oversight of a judge to correct the mistake. In a moment that I will never forget, he turned to me at the end and said, “I have always wanted to say these words: ‘I hereby declare Wendy Ruth Nichols duly elected’”. That experience taught me that democracy is precious, but it also requires vigilance.

Beyond local government, I had the privilege of serving on the national executive committee of the Labour Party for nearly 14 years, including some of our most challenging times in our party’s history. I am proud of that work, because I believe that politics should be about service, about building a fairer society and about ensuring that those who come after us inherit something better.

As I take my place in your Lordships’ House, I do so with immense gratitude but also a sense of personal loss. My husband Keith, a proud railwayman and a trade unionist, passed away in 2008. My parents, who shaped so much of who I am, died within a month of each other in 2009. I wish that they could be here to see this moment and share in this honour, but I know that they are with me in spirit, just as I know that my greatest legacy lies not in titles, robes or offices but in my children, Rachel and Shaun, my daughter-in-law Jenny and my six wonderful grandchildren: Brandan, Fiona, Libby, Ella, Michael and Aimee.

I now turn to the debate. This is, again, something of interest to me. Over the years, I have represented many of our members in the Probation Service and have seen the amount of work that they have to do. While PSRs themselves are not an indication of sentence, we know that there is evidence that they are an important element in sentencing. Receiving a PSR is more likely to discourage a judge from sending an offender to prison, and therefore will help to reduce pressure on prison numbers. We know that that there are inequalities and disparities in society and in our justice system, which must be addressed. But these guidelines amount to treating people differently before the law, according to their race or their religion, which breaks an ideal that our justice system is built on: equality for all before the law. One of our most closely held ideals is equality before the law and that we can never have two-tier justice because it completely undermines public confidence.

Clearly, the Sentencing Council is straying into matters of policy in trying to correct for racial disparities using differential treatment methods. Pre-sentence reports are very important to give the judge as much information about the offender as possible and can cut levels of reoffending when used properly. However, I hope that the Minister will agree with me that they should be available for all offenders and that access to a pre-sentence report should not be determined by an offender’s ethnicity, culture or faith.

Pre-sentence reports are important but, very often, probation is stretched so thin that officers do not have time to complete them. What will the Government do to ensure that, where a PSR is required and requested, the Probation Service will have the capacity to do that?

I note that the Bill removes the whole problematic section of the guidelines, but the Lord Chancellor has been clear that pregnant women or victims of domestic abuse would still very much be expected to have a pre-sentence report.

I look forward to working with all your Lordships in the months and years ahead. I bring with me the values of Selby: community, fairness and a belief that we all do better when we stand together. I thank noble Lords for their time and their welcome, and I look forward to playing my part in this great institution. The path from the pit-top canteen to the red Benches of this House has been eventful, and I have no doubt that the next chapter will be just as remarkable.

16:46

[Lord Bach (Lab)]

My Lords, it is an honour as well as a pleasure to be the first to congratulate my noble friend on her outstanding and, if I may say so, very moving maiden speech. She brings to this House deep experience and wisdom. She and her loving family have met challenges and setbacks that many in this House will not have experienced. She has faced adversity and knows as well as anyone what it is like to be brought up, to work and to live in a world where people do not always enjoy the good things that many of us in this House take, and have always taken, for granted.

It was clear in her speech that she understands deeply how people experience life. Her brilliant reputation, from her union work with NUPE and then with UNISON, shows that absolutely clearly. There will be many in Selby and beyond who owe a huge amount to her hard work and commitment. She told us in her speech that her values are community, resilience and public service. Whether in working for her constituents when she was a councillor, working for North Yorkshire Council for many years, her work for UNISON and her fellow workers, or performing her important and invaluable—I mean invaluable; many on this side will know exactly what I am saying—political work, she has truly lived up to her values. All of us who have had the honour of listening to her speech today look forward to hearing her many times in this House.

On the debate, I should declare some interests: first as chair of the Leicester Community Advice and Law Centre; secondly, as joint chair of the All-Party Group on Access to Justice; and, thirdly, as a member of this House’s Justice and Home Affairs Committee. Before making the few points that I intend to make, I want to stress—and I think it needs to be stressed—how the Ministry of Justice under this Government already has a record to be proud of. It is not only in the quality of its Ministers, particularly in this House, but in what, against crushing obstacles, it has already achieved, given the ridiculous, unsatisfactory budget it has to work with.

For me, the small but important increases in the legal aid area, and particularly the setting up of the Gauke and Leveson reviews, are among the MoJ’s most significant achievements. However, I cannot say that I am equally delighted to see the Bill before the House this afternoon, taking up precious parliamentary time that could be spent legislating, or at least debating, other more vital justice issues. Frankly, I find it hard to accept that we could not have resolved this impasse without the need for legislation, let alone fast-tracked legislation.

After all, there is an overwhelming consensus as to the value and necessity of pre-sentence reports. In addition, there is surely widespread agreement that the Gauke review, due out later this month, and the legislation that follows it, will be of much greater significance than the Bill as far as sentencing is concerned. It will also, of course, be relevant to the issues we are discussing this afternoon at Second Reading. The danger, it seems to me, is one of overlegislating. By not allowing something as broad as personal characteristics to be taken into account in sentencing, we may, almost by accident, be excluding other factors that are highly relevant to any sentencing decision.

This takes me to an amendment moved but not voted on in the other place. It was in the name of the right honourable Member, Jeremy Wright, a distinguished Attorney-General in the coalition and succeeding Tory Governments. He argued, cogently, that if anything that comes within the broad category of the term “personal characteristics” is forbidden from being considered by the Sentencing Council when setting out its guidelines, this could well cover other personal characteristics—he mentioned physical or learning difficulties, or severe injuries—which is surely not the intention of the Bill and could make the difficult task of the sentencer even more difficult. Jeremy Wright suggested a change in wording to “demographic cohort”, thus giving Ministers their point but not making the result confused or unintelligible. I am attracted by this approach and hope that the Government, following this Second Reading, will carefully consider Mr Wright’s proposition, if not using his actual words.

I want to make two final points. Both the current chair of the Commons Justice Committee, Andy Slaughter MP, and his predecessor, Sir Bob Neill, have expressed regret that the Bill, and particularly the events leading up to it, have been used by some to undermine judicial independence and to allow ad hominem attacks on judges under the guise of belated objections to these guidelines. I agree entirely with the two chairs of the Commons Justice Committee. Alas, today we see in other countries around the world, including, surprisingly, the United States of America, how easy it is for Governments, and Oppositions, to attack the judges. As a matter of course, we do not do that in this country, I hope, and I find it more than sad that—indeed, I am angry that—it has happened here.

Independence of the judiciary is of course a fundamental part of the rule of law. Attacking judges undermines that independence, and all of us should resist the temptation, however irresistible some politicians seem to find it. We should know better.

What unites us, and what makes this legislation quite hard to understand, is that all of us believe in the importance of pre-sentence reports, which play a vital part in sentencing. I practised criminal law for over 25 years, defending more than prosecuting. That was some time ago, of course, but in those days, it was inconceivable that a first-time offender—or any offender, really—who might face a first custodial sentence would be sentenced without a properly prepared pre-sentence report. By properly prepared, I do not mean a 10-minute interview in the cells and then back into court; I mean a well prepared and thorough report, with a probation officer being given the time and space to do their job.

We were all surely shocked to learn that the number of pre-sentence reports has fallen by 42% between 2015 and 2023, from 160,000 to 90,000. I am afraid that one has to ask the question: how many of these reports are having to be prepared much too quickly?

I hope we can all agree that pre-sentence reports are an essential part of our system and cannot be allowed to be compromised for financial reasons. That is why the future of the Probation Service is so vital to this debate, and why, in my view, it would have been better, if possible, to have waited until the Gauke review and the legislation that follows it.

16:56

[Lord Verdirame (Non-Afl)]

My Lords, I too begin by paying tribute, briefly, to the noble and learned Lord, Lord Etherton. He was a mentor and, for 25 years, along with his husband, Andrew, a close friend. I benefited from his counsel and friendship for many years, and I will miss him dearly, as I am sure many will in this House.

My spirits were, however, raised by the speech of the noble Baroness, Lady Nichols of Selby. Her words were warm, moving, inspiring and thoughtful, so I am sure she will make a great contribution to this place.

Many of the points I wanted to make about the Bill have been made very eloquently by the noble and learned Lord, Lord Thomas, and now by the noble Lord, Lord Bach. I should say that, unlike the noble Lord, Lord Bach, criminal law and criminal procedure is not within my field of academic expertise or practice at the Bar; the concerns I have about the Bill are of a more general nature.

I understand and respect the political considerations behind the Bill, but as with other brief and seemingly straightforward pieces of legislation, it lacks the necessary clarity. The main problem is, as we heard before, the concept of personal characteristics. The prohibition is by reference to this concept. The Bill does not contain a definition of personal characteristics but provides a non-exhaustive list. It leaves open the question of what other characteristics might count as personal characteristics under the Bill.

At paragraph 14 of the Explanatory Notes, the effect of the two key subsections of the Bill is described as follows:

“Sentencing Guidelines cannot be issued to state that it should generally be necessary to obtain a pre-sentence report based on an offender’s membership of a particular demographic cohort, rather than the particular circumstances of that individual”.


The Explanatory Notes thus suggest that the concept of personal characteristics is related to membership of demographic cohorts. The Sentencing Council’s draft guidelines on the imposition of community and custodial sentences, which prompted the adoption of the Bill, said that a pre-sentence report would be necessary if the offender belonged to one or more cohorts. The guidelines did not describe the cohorts as demographic, because they included characteristics that would not generally be understood as being demographic.

It may be that the addition of the adjective “demographic” in the Explanatory Notes was designed to give more specificity, but, unfortunately, the categories of personal characteristics specified in Clause 1(3) seem only to add confusion. To begin with, we do not see the most obvious characteristic defining a demographic cohort—age. Moreover, the characteristics mentioned in the Bill, such as “belief” and “cultural background”, are not usually understood as characteristics defining membership of demographic cohorts. So I am not sure that the description in the Explanatory Notes of the cohorts as “demographic” really tells us very much about the meaning of personal characteristics.

Of the three personal characteristics that are expressly mentioned, two—“race” and “religion or belief”—are also protected characteristics under the Equality Act, while the third, “cultural background”, is not. By the way, cultural background is itself a rather vague notion. I was going to ask the Minister to provide some clarity on the relationship between personal characteristics in the Bill and protected characteristics under the Equality Act, but he addressed this issue in part in his introductory remarks. However, I am not sure that what he said makes the boundaries of the concept of “personal characteristics” any easier to identify. The Bill, as currently drafted, lends itself to both a broad and a narrow understanding of personal characteristics. Based on the Minister’s introductory remarks, it seems that the Government take the view that the broad interpretation is to be preferred. Can he tell us whether this means that personal characteristics include all protected characteristics under the Equality Act, as well as other unspecified characteristics? If so, how do we identify these other characteristics?

The Explanatory Notes also draw a distinction, on which others have commented, between “personal characteristics” and “personal circumstances”, but can the Minister help us understand the dividing line between them? What about, for example, education or socioeconomic status: is that a characteristic or a circumstance?

There are constructive avenues through which some of these issues can be addressed and the clarity of the Bill can be enhanced. It will be important for us to consider these thoroughly in Committee to ensure that the Sentencing Council receives a far clearer legislative instruction than the current draft of the Bill provides.

17:02

[Lord Hope of Craighead (CB)]

My Lords, what a pleasure it was to listen to the maiden speech of the noble Baroness, Lady Nichols of Selby. I am so glad that she took such trouble to explain the complicated background that brought her to this House; it greatly adds to our understanding of the way in which she will approach the work that she will undertake here. It was an inspiring speech, and she also contributed to the merits of this debate, which was very valuable.

I was the last to work with the noble and learned Lord, Lord Etherton, on his final contribution to the work of the House. He sat as chairman of the Holocaust Memorial Bill Select Committee, which was a difficult task because many Members of this House were very concerned about its provisions. He presided over it with great care, great skill and considerable charm. If he was unwell—and he may well have been—he did not show it, so he conducted his duties as chairman with a great deal of courage. It was typical of his kindness that, as we were approaching Christmas and finishing our work, he did something unusual that I have never encountered before: he, as chairman, sent each member of the committee a Christmas card. That may seem like a rather light point to make, but it was very typical of a man who was very down to earth, very kind and very thoughtful. We shall miss him very much.

As others have said, it would be lovely if we could resolve the dispute that has given rise to this Bill without legislation. However, we have the draft legislation, so I will address what we have before us without speculating as to what might have happened.

As we heard, particularly from the noble Lord, Lord Jackson of Peterborough, there are two issues of principle that arise here: one is the independence of the judiciary and the need to respect that, and the second is the principle of equality before the law. As for the first, while the Sentencing Council includes the judiciary in its membership and is there to provide guidance to the judiciary, I do not see this as a reason why the Bill should not proceed. It does not compromise the independence of the judiciary in the exercise of its judicial function. It does not seek to deal with any decisions delivered in court by members of the judiciary. Its sole concern is with an issue of policy raised by the council’s revised guideline on the imposition of community and custodial sentences. It does not address the passing of a sentence itself.

It is surely right, then, that the Government should ask Parliament to engage with issues of that kind if they find themselves in disagreement with what the council has proposed. Our statutes are full of examples of situations where policy decisions about the nature and length of sentences are made by Parliament. It was not always so: when I began my practice as a lawyer—earlier than the noble Lord, Lord Bach— 50 years ago, Parliament did not really say anything about sentencing. There were no sentencing councils; it was all a matter for the judiciary. We have discovered that there is a need for balance and consistency. That is where the Sentencing Council comes in, and one can understand its function.

The fact that the Bill disagrees with a policy decision by the council does not in any way undermine or offend against the principle of the independence of the judiciary. It is the application of the principle that everyone should be equal before the law that lies behind the Bill. I understand the Government’s concern that the revised guideline does not seem to respect that principle. To say that a PSR is normally to be considered necessary if the offender is from an ethnic, cultural or faith minority community inevitably raises the question: what about the others? What about the rest of those who are not from those particular backgrounds?

As everyone knows, due to years of hollowing out by successive Governments, the Probation Service is short of money. It is underresourced, and that has given rise to the tragic situation that the noble Lord, Lord Bach, described so well—the diminution in the number and possibly the quality of the reports that are being delivered. The problem we are addressing is that although everybody who faces a custodial or community service should have a pre-sentence report, that is not something that the Probation Service can deliver for everybody.

As I was not part of the discussions, I do not know why the council felt it necessary to issue the revised guideline, but it seems likely that it felt that priority should be given to some in a situation where a PSR cannot be got for everyone. I can understand that approach.

I agree with the Government that there is a risk that the revised guideline, although sensible and understandable for the reason I just discussed, will disadvantage those who are not from the particular cohorts that it has identified. They face the prospect of being sentenced without a pre-sentence report, and that is a result that, in most cases, no one would wish to see.

My principal concern, which others have touched on, is with the wording of the Bill. This was indeed, as the noble Lord, Lord Bach, told us, a point raised at Second Reading in the House of Commons by Sir Jeremy Wright, the former Attorney-General. He later tabled an amendment which addressed his point. As he said at Second Reading, we ought not to address one inequality by replacing it with another. He suggested, and I respectfully agree with him, that the phrase “personal characteristics” in proposed new Section 120(4) of the Coroners and Justice Act 2009 is too broad. As worded, it seems to prevent the issue of guidelines to deal with cases where information about a particular personal characteristic—I rephrase that as “an individual’s circumstances”, because it might include individuals’ circumstances too in that broad language—is crucial to the just disposal of the case.

Take circumstances such as impaired physical or mental health, autism or some other condition or disability of that kind, pregnancy, or the fact that a person is a primary carer. These are examples of cases to which, on its present wording, the wide prohibition that the Bill seeks to impose would seem to apply. Sir Jeremy’s point was that there is a danger of throwing the baby out with the bath-water, and he wondered why the more precise language in the Explanatory Notes was not used.

I ask the same question. The Explanatory Notes say 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”.

Sir Jeremy had those particular words in mind. The use of the phrase

“membership of a particular demographic cohort”

would avoid extending the exclusion too far, while addressing more precisely the problem that the Government wish to address.

I have rather gathered from what the Minister said in introducing this debate that it is the Government’s intention that the prohibition should extend beyond the list which is given in the new subsection. That is troublesome. If the Government wish to stick to the language that they have chosen, they really should consider rewording the definition in new subsection (12). It says that, for the purposes of Section 120 of the 2009 Act,

“‘personal characteristics’ include, in particular”

listed items. The word “include”, if the Minister will forgive me for saying so, really is a weasel word. It stretches the point into the unknown, over which the House has no control or opportunity for scrutiny. When a prohibition is legislated for—a prohibition in particular—it should be precise. That would be achieved by replacing “include, in particular” with the simple word “means”, which would tie the prohibition down to the particular circumstances listed in the new subsection. That would give the prohibition a precise meaning, while meeting the very particular point in the revised guideline that the Government object to.

As the noble Baroness, Lady Hamwee, mentioned, and the Constitution Committee’s report drew attention to, there are reasons to be concerned about the fact that the Bill is being fast-tracked. But the fact is that it is being fast-tracked, and I suggest that with it that brings a reluctance to accept amendments in this House which would require the Bill’s return to the other place. If that will be the position of the Minister, I very much regret it, because I hope he will listen very carefully when we reach Committee to ways in which, without undermining or destroying the Bill, we can improve the wording to make clear exactly what the prohibition is intended to do.

The point is that words matter—words always matter. It is the function of this House to address that point, which is why I gave the Minister notice of it in advance and why I am addressing it now, along with others with whom I respectfully agree. I hope that, in order to save time, if that is what the Government want to do, they will look at the wording of these provisions themselves and come up with an amendment of their own which meets the objection that I am raising. I look forward very much to hearing what the Minister has to say.

17:13

[Baroness Mattinson (Lab)]

My Lords, I start by congratulating my noble friend Lady Nichols on her absolutely brilliant and very moving maiden speech. It is great to be sitting here with her today.

I thank my noble friend the Minister for his excellent work on this very difficult issue. I believe he was absolutely right to respond as he has. I think this is a question of how we preserve the public’s trust in our legal system. As we all know, unfortunately, we generally trust institutions much less nowadays, especially government and politics. That said, the British legal system enjoys a relatively high rating with the public, at 62%, versus the OECD average of 54%. This is something we must work hard to preserve and should feel very proud of.

There is, rightly, some concern that ethnic minorities are overrepresented in the prison system, as the Lammy review, for instance, found recently. However, the majority of the public does not see the sort of sentencing guidelines that are being discussed today—taking into account religious or ethnic background—as the solution. The polling on this is pretty clear: 72% of the public oppose these moves and 52% strongly oppose them. This clarity extends across the whole population. There are some differences between gender, age and so on, but, basically, that majority view—and particularly that strength of feeling—is held across all groups.

Essentially, it seems that the public believe that sentencing guidelines of this type risk being unfair and disregarding the complexity of causes that need to be taken into account. It might be that the public could, and perhaps should, know more about how sentences are set, but it certainly seems to me that simply saying that they are wrong is not the answer.

I therefore agree that introducing such sentencing guidelines is more likely to create resentment, and risks causing more problems than it solves and breaking that vital bond of trust between the public and the legal system that matters so much. I support the Bill very strongly.

17:16

[Lord Beith (LD)]

My Lords, I do not regard the decision of the Government to try to resolve a difference of view about the contents of the guidelines in bringing legislation before this House as improper, or as an assault on the constitution or on the judiciary, but I think it is extremely ill-advised. It is ill-advised because of the fast-tracking, because of the impression it gives about pre-sentencing reports and because the Bill is so incoherent. I want to deal with each of those things.

It seems to me that the Government have encouraged a practice, to be deplored among Governments, of finding a political problem, getting out the legislative shotgun and firing the trigger immediately, before any serious thought has been given to how a problem can be dealt with properly and effectively.

The Bill is both unnecessary and undesirable. It is undesirable because it gives the impression that pre-sentence reports are in some way conferring a privilege, whereas they are in fact assisting the judge. If in some cases they lead to someone being given a non-custodial sentence, that may well be because a non-custodial sentence is more likely to reduce re-offending on the part of that person. They are to assist the judge to make important considerations in sentencing practice which need to be made—and increasingly need to be made in a situation where our prisons are desperately overcrowded and their record in reducing reoffending, as the Minister knows all too well, is very weak indeed.

I come to the contents of the Bill. The Bill says that guidelines about pre-sentence reports

“may not include provision framed by reference to different personal characteristics of an offender … in particular … race … religion”

or

“cultural background”.

The phrase “in particular” implies that other personal characteristics, unspecified, could fall within the prohibition. The Government’s Explanatory Notes on the Bill confirm at paragraph 15 that the list in the Bill is “non-exhaustive”. That has been further confirmed by various statements that Ministers have made.

How does the Sentencing Council know if a category or cohort of offenders, other than those named in the Bill, is covered by the prohibition? It is a very bad practice to impose on a body—in this case a single body, the Sentencing Council—a law whose extent it cannot know. There is no known method of deciding what the status in relation to this law is of a characteristic which is not specified in it and which does not fall within some generally described category.

We are all aware of numerous categories to which this applies. There are pregnant women, who are already covered, of course, by R v Thompson in 2024. It is not clear to me whether, if the sentencing guidelines included a phrase drawing attention to recent case law on the subject of pregnant women being given custodial sentences, the Sentencing Council would be acting illegally. What is to happen in those circumstances?

One can think of a number of other circumstances where there is already provision in statute and which the Government appear to be saying are unaffected by the Bill, but it is not clear whether the Sentencing Council can lawfully draw attention to those features, which fall within personal characteristics. The example that I took is not named in the Bill, but it applies to the named and the unnamed characteristics. There are many of them—victims of modern slavery; victims of domestic violence; offenders brought up in local authority care; victims of sexual abuse in childhood; residents of a notorious gang-ridden housing estate characterised by intimidation; children. Nearly all those categories do not fall within those specified in the Bill but obviously ought to be in a pre-sentence report. What happens if the Sentencing Council draws attention to any of those in any future version of the guidelines which emerges from this process? The Bill is a mess.

We have a crisis of re-offending, a crisis in our prisons and a sentencing review led by David Gauke. Those are the sorts of things that we need to be talking about. There is no crisis in the Sentencing Council; there is a disagreement about the form of words to be used to give guidance to courts on sentencing. However, that does not justify fast-tracking of Bills, which attenuates proper debate and discussion and could lead to the situation described by the noble and learned Lord, Lord Hope, of the Government being reluctant to accept an amendment because the fast-tracking would be upset by the Bill going back to the Commons. That is nonsense, because it would be done in a day. The noble and learned Lord’s guidance was very wise. I hope that we are not deterred from amending the Bill by the need for it to go back to the other House. That would make a nonsense of what we are here to do and the responsibilities that we have. In the Constitution Committee report, which is now technically published but not yet widely seen, it makes clear its objections to that fast-tracking process.

We have all these crises and problems in relation to our prison system and sentencing policy, yet here we have a Bill which does nothing to address any of them and is an ill-advised move in circumstances which could be resolved in a much better way.

17:22

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it was a pleasure to hear the maiden speech of the noble Baroness, Lady Nichols of Selby. I particularly liked her comment that politics is about service. I think that almost everybody in this House understands that extremely well and tries to commit to it. It is also a pleasure to be in a debate where the lawyers mostly agree. That is quite unusual. Quite often, one is debating this or that, but today it has been rather harmonious.

The Sentencing Council is an independent body that saw a problem and tried to do something about it. It has done what it was designed to do. Now, the Labour Government are running scared of these rather nasty right-wingers who are trying to interfere. I think it was Elon Musk, perhaps among others, who first said that Britain had a two-tier justice system. He was right. That is exactly what we have. Some groups are treated worse than others. We do not have equality under the law. We have known about women being less fairly treated for decades, with their being imprisoned for things that men would not be. The Sentencing Council came up with the mildest of changes to address that issue and has been slammed for it. The updated sentencing guidelines do not do anything dramatic. They just ensure that the courts have the most comprehensive information about offenders and offences. The revised guidelines put emphasis on pre-sentence reports in sentencing decisions and offer more clarity on the scope of requirements for community orders and suspended sentences.

The Government say that they want equality under the law, but everybody wants that; we all understand that it is absolutely desirable. However, the difference is that I accept the evidence that we currently have a two-tier system of justice where you can end up receiving worse treatment because you are a woman or because of the colour of your skin.

If the Government are going to reject the guidance from the Sentencing Council, what ideas are they putting forward? I am speaking only briefly because a lot has been said already that I agree with—and some with which I do not, obviously. I am puzzled by the fact that the Government do not have qualms—or perhaps they do; the noble Lord, Lord Timpson, might want to tell us—about the fact that the Greens, the Lib Dems, the Cross-Benchers and the Church are speaking against the Bill. They have the Conservatives and Policy Exchange supporting them—what is that about? Since when did the Labour Government want to be supported by this lot? I really do not understand where they are coming from.

Please can we remember that we are in a society now that is deeply misogynistic—more than, I think, at any time in my life? As a 1970s feminist, I thought that we had won that battle. I really thought that this was the future for women and that we would be equal in society. We clearly are not. The Government ought to address things such as that. I look forward to seeing some of the amendments from more learned people. I would almost certainly support them.

17:26

[Lord Sentamu (CB)]

My Lords, I, too, add my heartfelt congratulations to the noble Baroness, Lady Nichols, on her wonderful maiden speech. I know her from back in North Yorkshire. She was always a wonderful woman—a wonderful lady. If you went to some of her meetings, she was very like a mother hen gathering her chicks around her. She was always looking out for somebody who was on the margin and excluded, and she tried to draw them in. What noble Lords have heard is what I experienced when she was a politician. She is still loved in Selby, and people still remember her. I remember the grand opening of the organ in that wonderful place. She was there helping with tea and coffee, serving and being involved. She did it from the heart. It was never a show. With her smile and her welcome, you always knew you had come home. I look forward to hearing what she is going to say. Her maiden speech was one of those things that reminded me of North Yorkshire.

Some of your Lordships may be surprised, but I welcome this Bill for the reasons clearly set out in the Explanatory Notes and the House of Lords Library briefing by Claire Brader. They give the reasons why this is happening: in the meeting with the Sentencing Council, it did not want to change things within its guidance, so the Government thought it was right to change it by legislation—and that is the only way you could change it; there is no other way, because the body is independent.

I agree with His Majesty’s Government that the Bill will ensure equality—I would rather use that word than “fairness”—for all in our courts. The noble Baroness, Lady Hamwee, said exactly the same. If we go for “equality” and not “fairness”, then everybody will be clearly included within it.

This law will prevent the Sentencing Council publishing guidelines that stipulate the use of a pre-sentence report —PSR—based on the offender’s personal characteristics. The Government have created this, and I think they should have been much wiser to pick out those characteristics that are prohibited to be used as a basis for exclusion from the Human Rights Act. The noble and learned Lord, Lord Thomas, said the same thing: race, religion and belief are protected characteristics. Why not put in those protected characteristics or simply refer to Article 9 as set out in the Human Rights Act? That would be much clearer. Of course, they have done a bit about race, belief, and a thing I do not understand: “cultural background”? What does it mean? Does it mean that both of us grew up on the same estate and that, if you did not, you have no background? That is the bit in the Bill that I think is not worth retaining —the Government have to find something better.

I turn to that four-letter word, race. I was chair of the General Synod’s Committee for Minority Ethnic Anglican Concerns, which came out of the Faith in the City report. We carried out a survey of the ways of combating racism in the dioceses of the Church of England in 1991, and we called it Seeds of Hope. We said this about the nature of humanity: men and women, boys and girls, of every hue and ethnic group belong to the one race, the human race, all made in the image of God, and all are of unique worth in his sight.

The word “race” has had a troubled history. Racism is born out of ignorance. Sadly, ignorance is not in short supply, and that is why we get racism. Apartheid in South Africa, for example, believed that colour defined the race of a person. Laws were passed, from marriage to where you lived and where you were buried, because you belonged to a very different race from those who were governing at the time. Next door in Zimbabwe, the seizure of white farms led to the turning of a food basket for the whole region into a basket case. White farmers and their workers belong to the one human race and deserved to be treated thus. Humanity belongs to the one human race—even, I want to say, in Zimbabwe.

Margaret and I have three grandchildren. Two are from a white father and a black mother, while the third is from a white mother and a black father. All three, by the way, are not from mixed parentage or different races; they are blessed to be what we call “double ethnic”—that is, with a white parent and a black parent. It is not that they are “coloured” or this, that or the other stuff. I wish His Majesty’s Government had used a better word, which for me is “ethnicity”, not “race”. The word “race” has an unfortunate history. When most people talk about race they are talking about me, because I happen to be black and Ugandan; when you are talking about a white person, the word “race” does not appear. We all belong to an ethnic group, but equally we belong to the one human race.

I hope we will find a way of talking about this so that we bury the word “racism”, because it often does not describe what you want to describe. During the Stephen Lawrence inquiry, we talked to people in Birmingham who held the view that every white policeman in the Met was a racist simply because they happened to be white and they happened to be in the police. That was a difficult gathering. Then you get some black people to whom you may suggest that their views are racist but they deny that: “Me, a black person? Of course I can’t be racist”. But look at Mugabe in Zimbabwe.

I ask the Government to listen to the noble and learned Lord, Lord Hope, and table an amendment that is easier to understand and describes the very thing they want to do. The noble and learned Lord, Lord Thomas, thinks that is unnecessary. If tonight, by a miracle, the Sentencing Council could take out the words that have made the Government create this Bill, then of course there would be no need for it because they would not be in the guidance. But, while that is still the case, I support the Government in making sure that those sections in the guidance are prevented by law. However, I ask the Government to make the law clearer in what it is doing and to drop the question of cultural background. I do not know what it means, and I am not sure whether they know what it means, but it is in the Bill.

17:34

[Baroness Fox of Buckley (Non-Afl)]

My Lords, what a lovely maiden speech from the noble Baroness, Lady Nichols of Selby. She did Selby and her family proud—and, what is better, she talked a lot of grounded sense on this issue, so I welcome her.

I also welcome this Bill. What we are discussing here—that pre-sentence reports will now not offer differential treatment based on race, religion or cultural background—is important, but, as we have heard, it was a close thing. As the noble Lord, Lord Jackson of Peterborough, outlined, it is important that we note that it is a serious democratic concern that an unelected quango set up by elected politicians sought to act against the wishes of those same elected politicians, and it has taken urgent, fast-tracked primary legislation to stop it. I know from the Minister’s letter that this broader debate is off limits today, but I emphasise that this tension cannot be sidestepped and needs to be taken head on.

The noble Lord, Lord Beith, and others say that this Bill is unnecessary. Is the problem for us not that it became necessary because the independent Sentencing Council flouted democracy? That should matter. The Minister’s letter, which I referred to earlier, reassures us that this Bill will not affect pre-sentence reports in general. That is fine, although it has to be said that some attention needs to be given to PSRs. His Majesty’s Inspectorate of Probation’s latest annual report said that 70% of PSRs inspected between February 2024 and February 2025 were deemed insufficient.

I also think that more clarity needs to be offered to the public about the role of pre-sentence reports in general, now that we are talking about them in relation to this Bill. While there may well be broad acceptance that, in making sentencing decisions, the specific individual circumstances of any defendant can be looked at and taken into account, I think reassurance may be needed for the public that the main focus of sentencing decisions should be appropriate punishment for particular criminal actions and individual perpetrators’ culpability.

More broadly, and going back to the specifics of this Bill, I commend the clarity of the Lord Chancellor, Shabana Mahmood, about why the original Sentencing Council’s revised guidelines offended the principle of fair treatment before the law and how they seriously risked eroding confidence in the justice system in general. There is indeed an ever-deepening trust deficit, and I am not entirely sure that this narrow Bill is sufficient to fix it. The reason is that differentiated treatment in criminal justice goes far beyond this sentencing issue. Ms Mahmood seemed to acknowledge that when she stated:

“As someone who is from an ethnic minority background myself, I do not stand for any differential treatment before the law, for anyone of any kind”.


To borrow a phrase from the Prime Minister, she gets it.

Interestingly, Ms Mahmood also used a key phrase in opposing this differentiated approach when she confronted a “two-tier sentencing approach”. That is a choice turn of phrase. Previously, the popular critique of criminal justice as two-tier really resonated, particularly in relation to the sentencing post last summer’s riots, which was sneeringly dismissed as a far-right conspiratorial myth by many Ministers and politicians. It was written off as some culture war trope, and we have heard similar slurs here today. Even as recently as April, the Home Affairs Committee’s inquiry into last year’s “civil disorder” described claims of two-tier policing as “unsubstantiated” and “disgraceful”. Does the Minister acknowledge why there is a widespread perception, reflected in polling and grounded in real-life experience and evidence, that often, even before sentencing occurs, some crimes can be handled differently depending on the race, religion or community membership of the perpetrator?

I have just written the foreword for a forthcoming report entitled The Many Tiers of British Justice: When Identity Politics Trumps Impartial Policing, by Hardeep Singh. I will send a copy to the Minister when it is published next month: it is a crucial read. It uses as an example, and explores in detail, the loss of confidence in the impartiality of police operational decisions, which seem increasingly to be influenced by the particular community being policed, or by broader political concerns, rather than by criminal justice ones.

The plight of the suspended and now sacked chair of the Met Police Federation, Rick Prior, indicates this tension. Mr Prior was removed from his job after a TV interview in which he discussed how his members’ fears of vexatious investigations meant that police officers hesitated before engaging with minority-ethnic Londoners. Referring to some Independent Office for Police Conduct investigations, Mr Prior reported that some police officers had stopped applying the law fairly to people of all backgrounds.

Some noble Lords have expressed concerns about speeches made today that have raised broad political concerns, suggesting that we should have stuck to the narrow tramlines of the Bill—a bit like “Get back in your lane”. But this is Second Reading, so we are allowed to stretch broadly. I will also raise my concerns, which rather mirror those, that criminal justice is being used in a proactive, political way, and that those involved should potentially stick to their lane. Indeed, one thing that the whole Sentencing Council controversy has revealed is the tendency to try to use criminal justice to compensate for perceived racial unfairness and alleged social injustices. The Sentencing Council in its original statement admitted this by saying the quiet bit out loud:

“The reasons for including groups for PSRs vary but include evidence of disparities in sentencing outcomes”.


That translates as, “The aim was to go easier on certain groups to address alleged inequalities”.

The Lord Chancellor, in the Minister’s letter, acknowledged the Sentencing Council’s good intentions in addressing disparities of sentencing outcomes, but I am not sure that we should flatter those intentions. Even if the Minister rightly emphasises that these discussions should be had by policymakers, with decisions accountable to the public, I have a nagging concern, and perhaps the Minister can reassure me as I finish off.

The Government seem to be accepting at face value the Supreme Court’s thesis that racial disparities or inequalities of outcome must mean inequality of treatment and racist discrimination. I fear that such conclusions are exactly what leads to inappropriate, proactive anti-racist correctives and cloud the ability to look dispassionately and objectively at the issue. At the very least, alternative explanations need to be considered. For example, ethnic minorities tend to plead not guilty at a higher rate, leading to less leniency at sentencing. One hypothesis to explain this is that there is more distrust of advice given by state-provided lawyers—distrust that might legitimately have its roots in the legacy of historic racism.

If criminal justice bodies and politicians push a narrative that the state is institutionally racist, will that not simply deepen and embed such distrust? What we need are not narrow Bills but broader discussions. However, in this instance I hope that the narrow Bill will clear the way for those broader discussions, which should be about the use of the law and the judiciary for political purposes—something I think is worrying.

17:43

[Lord Phillips of Worth Matravers (CB)]

My Lords, this rather sombre debate has been enhanced by the delightful and endearing maiden speech of the noble Baroness, Lady Nichols of Selby. I am so glad I was here to hear it.

I endorse the comments made in respect of the death of my learned friend and erstwhile colleague, the noble and learned Lord, Lord Etherton. His loss is a personal blow and a blow to this House.

I believe it particularly desirable that judges should have the assistance of a pre-sentence report when sentencing ethnic-minority offenders. The Lammy review identified that ethnic-minority and particularly black offenders were sentenced to prison more often and for longer than white offenders. The review considered pre-sentence reports and concluded that the role that they played was

“vital considering the … difference in backgrounds – both in social class and ethnicity – between the magistrates, judges and many of those offenders who come before them”.

The problem is that, ideally, provision of pre-sentence reports should be the norm in the case of almost all serious offenders. Singling out the ethnic-minority cohort in the guidelines is capable of appearing to some to be unfair discrimination. But currently, a struggling Probation Service appears to lack the resources to produce adequate pre-sentence reports, even in the diminishing number of cases where they are requested.

I do not believe that the guidelines introduce two-tier justice, nor do I believe that their introduction would severely damage confidence in our criminal justice system. I do not believe that we need this Bill, but we are where we are. Let us reluctantly accept the Bill, imposing drafting improvements if we may—and there is scope for those—and move on to addressing the much greater problems that currently beset the sentencing regime.

17:46

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I echo the eloquent tributes to the noble and learned Lord, Lord Etherton, from the noble and learned Lords, Lord Thomas of Cwmgiedd, Lord Hope of Craighead and Lord Phillips of Worth Matravers. He will be greatly missed not only by those in this House who have had the privilege of hearing him over recent years, but by the wider legal public and the public in general.

It is with great pleasure that I join others in praising the excellent maiden speech of the noble Baroness, Lady Nichols, particularly, if I may say so, the very personal account she included in it. It was also a great pleasure to hear from the noble and right reverend Lord, Lord Sentamu, the Yorkshire perspective on the noble Baroness’s contribution to public life.

Nothing I have heard today has persuaded me that this Bill is either necessary or sensible. We on these Benches regard it as an overreaction to a difference, little more than a misunderstanding at the outset, between the Lord Chancellor and the Sentencing Council. What is more, it is a misunderstanding that could and should have been sorted out informally, by discussion and compromise, without resort to emergency legislation, as the noble Lord, Lord Bach, said.

We believe that this Bill proceeds from a false premise—a fallacy, indeed—that that the Sentencing Council has produced guidelines that depart from the principle that everyone is equal before the law. We in this House all believe in equality before the law. The argument advanced for the Bill is that if PSRs are obtained more readily for particular cohorts of offenders, those offenders are less likely to go to prison, which, so the argument goes, amounts to two-tier justice. But as my noble friend Lord Beith pointed out, this Bill is about the provision of pre-sentence reports, not sentencing offenders differentially. PSRs are written to assist judges in making the right sentencing decisions.

I suggest that the two-tier justice argument misrepresents what equality before the law means. What it means is the courts treating everyone alike, with neither fear nor favour. That is the significance of the saying that justice is blind and of the iconic statue that tops the Old Bailey. It is about applying the law even-handedly.

It does not mean ignoring the evidence—still less skewing the evidence by depriving the court of the ability to do justice on the basis of all the available evidence and information, and so weakening the ability of the court to dispense justice. The underlying reality, which this Bill ignores, is the glaring inequality of outcomes in our criminal justice system, whereby offenders from ethnic minorities have historically been far more harshly treated by sentencing courts. They are far more likely to go to prison than their white counterparts, and, as the noble and learned Lord, Lord Phillips, pointed out, for longer.

For the evidence of that, one has only to read the well-researched and well-argued 2017 final report of the Lammy Review, as mentioned by the noble Baroness, Lady Mattinson, and the noble and learned Lord, Lord Phillips. The noble Baroness, Lady Jones of Moulsecoomb, was among many who reinforced this important point. The Bill does nothing to address that reality—far from it. It ignores three very real truths.

The first is that PSRs are the only reliable way that judges can obtain a full and true account of the individual circumstances of the offenders they are called upon to sentence. These reports are a vital source for judges of independently collated information about those individual circumstances, which they need to take into account when deciding between imprisonment or a community sentence. They cannot get such information from speeches in mitigation, however well-constructed and presented by defence counsel, because they are made on defendants’ instructions and cannot be verified.

The second truth is that, as the Minister reminded us, while PSRs ought to be before judges in every case before sentencing—certainly in every case where a prison sentence is possible but not inevitable—their availability in practice has substantially declined in recent years. The reason for that is uncontroversial. Resources for the Probation Service have been progressively reduced and mismanaged by government over the years. The Minister reminded us that the number of PSRs has reduced by 44% over 10 years.

The third truth is that the quality of the reports that have been produced has declined as the time allowed to probation officers to produce individual reports has been reduced, allegedly to save money. My noble friend Lady Hamwee and the noble Lord, Lord Bach, spoke in some detail of the present weaknesses of many reports. We thoroughly welcome the Government’s commitment to increasing resources for the Probation Service generally and for the provision of more detailed and thorough PSRs in individual cases in particular.

I agree with the noble Baroness, Lady Nichols, that we should be making thorough pre-sentence reports available for all offenders where the options are custody or a community sentence, to enable the court to have the fullest material about individual circumstances of offenders when sentencing. Where I part company with the Government and the noble Baroness, Lady Nichols, is that it neither logical nor defensible to say, “Well if we can’t afford reports for all those at risk of prison, we will forbid the judges to prioritise the most vulnerable groups in the interests of an artificial equality”. Yet that is what this Bill proposes. I agree with the right reverend Prelate the Bishop of Gloucester that it is plain wrong to forbid prioritising pre-sentence reports in the face of a lack of resources.

That is not to uphold equality before the law in the face of a misguided guideline. It is to prevent the Sentencing Council performing its function in the most helpful way possible by addressing the inequality of outcomes that bedevils the system as it operates at present. It is all very well for the Minister to say that the causes of unequal outcomes are presently unknown, but there is a mass of evidence to the contrary.

Even the proposition that doing without PSRs saves money is deeply flawed. If, following the logic of the two-tier justice argument, more PSRs lead to fewer custodial sentences, then PSRs do not increase public costs; they save the public money. No one denies that prison is far more expensive than community sentences. That is true on all the evidence, even leaving out of account the knock-on effects of imprisonment on prisoners’ families, housing, employment and dependence on the state, and the effects of all that on the public finances.

Then there is the clear evidence that community sentences are far more effective than prison at reducing reoffending. Reoffending costs the public purse on the average estimate about £18 billion a year. If PSRs are more widely available, then that may contribute to a reduction in reoffending and so a saving of resources.

The Bill raises two constitutional issues. The Constitution Committee has considered this Bill and has prepared a report, which has technically been published today, but of course no one has had time to read or consider the report. That rush is relevant to the first constitutional issue, which is an issue on which the committee criticised this Bill—the use of fast-track emergency legislation once any emergency has passed.

As we know, the Sentencing Council paused implementation of the guidelines, specifically to give this Parliament time to take a view. This Bill has no place being treated as emergency legislation. It has been rushed at every stage. The rules about time lapse between stages are designed to allow time for reflection and consultation between stages, not just in Parliament but outside. This Bill has suffered from a lack of both.

The second constitutional issue is this: while I accept that Parliament has the power and right to legislate to alter the powers or functions of the Sentencing Council, the council is itself a creature of statute and that power ought to be exercised with great caution. The Sentencing Council was established by the Coroners and Justice Act as an independent body to give advice to judges. Its purpose is to assist the judges in the conduct of their sentencing decisions and to help them to achieve the appropriate level of consistency in sentencing approaches and outcomes. That is a judicial function. It is not sensible for the Executive to interfere. Parliament sets out maximum sentences and a set of rules. But it is dangerous for the Executive to interfere, through introducing an Act of Parliament, with the way the sentencing guidelines are then produced, and to set out what they should or should not contain. That runs some risk of an unwarranted and unhelpful interference by the Executive in the working of the judiciary.

In the House of Commons, Robert Jenrick, the Conservative justice spokesperson, proposed an amendment proposing what was in effect a veto over sentencing guidelines produced by the Sentencing Council. In this House, the noble Lord, Lord Jackson, proposed much the same thing. That is inappropriate.

In addition, the Bill is incoherent in its drafting—what the Constitution Committee politely calls “legislative uncertainty”. I do not wish to go into detail because the points made throughout the House by my noble friend Lady Hamwee, the noble and learned Lords, Lord Thomas of Cwmgiedd and Lord Hope, the right reverend Prelate the Bishop of Gloucester, and the noble Lords, Lord Bach and Lord Verdirame, on personal characteristics are surely right. Are not pregnancy, being transgender and sexual orientation all personal characteristics? They are also circumstances that a sentencing court might want to take into account, as well as ethnicity, particularly where those characteristics give rise to persecution, abuse and psychological and mental health issues. Those are just the kind of factors that might be considered and explained in PSRs. Why should sentencing guidelines not indicate that some of these characteristics are important and make a PSR more valuable to judges?

For my part, I find any distinction between personal characteristics and personal circumstances ill-defined and unhelpful, and I agree with the noble and learned Lord, Lord Hope, and my noble friend Lord Beith that the wording of the prohibition is profoundly unhelpful. I shall not take up the invitation of my noble friend Lady Hamwee to foreshadow at Second Reading amendments that might later be considered. We have heard a number of suggestions for Committee. I would also consider the insertion of the words “without good cause” into the prohibition, to allow for some assessment of what may or may not be sensible. But that is for the next stage of these proceedings, so I shall leave it there.

18:00

[Lord Wolfson of Tredegar (Con)]

My Lords, I hope the House will permit me to begin with a word about the noble and learned Lord, Lord Etherton. He was, as the noble and learned Lord, Lord Thomas of Cwmgiedd, remarked, a very great man. Outside this House, he was a brilliant Chancery lawyer and a wise judge. In this House, he was a wonderful person to have on your side and, I remember as a Minister, an intimidating, if always courteous, opponent to have on the other side of a debate. I will miss him. May his memory be a blessing.

The Bill has been introduced to remedy a problem, and it does more or less remedy that problem. But it could, and we say should, do more, because the immediate problem that led to the Bill has shone a light on a deeper issue of constitutional significance in the criminal justice system. On that point, I agree with the noble Baroness, Lady Hamwee, although we differ on the substance of the Bill and what has led to it.

Not surprisingly, given the number of former senior judges from whom we have heard this afternoon, we have heard many excellent speeches. More surprisingly, given the number of lawyers who have spoken, we have kept more or less to time. But I immediately single out a non-lawyer: the moving maiden speech of the noble Baroness, Lady Nichols of Selby, was a real privilege to listen to. I knew that you could get almost anything at Woolworths, but I did not appreciate that you could get future Baronesses as well. I look forward to hearing more from the noble Baroness during our work in this House in the coming months and years.

As we know, the Sentencing Council, an unelected body with eight members appointed by the Lord—now Lady—Chief Justice and six members appointed by the Lord Chancellor, proposed sentencing guidance that could have led to a divisive criminal justice system, one that risked dividing people by race, religion and identity. That point, it appears, is not now in dispute, at least between the two Front Benchers, given that first the shadow Lord Chancellor and then the Lord Chancellor herself publicly opposed the proposed guidelines.

Originally due to come into effect from 1 April this year, the proposed guidelines said that it will “normally be considered necessary” for judges and magistrates to request a pre-sentence report for certain cohorts of individuals. Those cohorts included the defendant belonging to

“an ethnic minority, cultural minority, and/or faith minority community”.

I should say at the outset that I too am not entirely sure what is meant in these terms by a “cultural minority”, if it is not already an ethnic minority or a faith minority. Are we talking about Morris dancers or devotees of Wagner’s “Ring” cycle? As the Bill uses the same term, this is not really a joke. If the Government want to put this phrase into legislation, they have to tell us what it means. I look forward to the Minister, to whom I have given notice of this and other points, giving a few examples, I hope, of a relevant cultural minority in this context.

What was the effect of these guidelines? It was quite simply that, if you were in one of these groups, a pre-sentence report would “normally be considered necessary”. What is the effect of that? It means that your chances of receiving a non-custodial sentence have increased. Pre-sentence reports, typically written by a probation officer, are key to judges and magistrates deciding whether to sentence an offender to prison or to a non-custodial community order, particularly in borderline cases. As a result, deciding which defendants are included in the cohorts where a pre-sentence report will “normally” be required, and which are not, can be key in deciding who goes to prison and who does not.

As a matter of statute, courts have to follow these guidelines from the Sentencing Council; they are not optional. Prior to 2009, courts in England and Wales were directed that, in sentencing, they must

“have regard to any guidelines which are relevant to the offender’s case”.

That was from Section 172(1) of the Criminal Justice Act 2003. During the passage of the Coroners and Justice Act 2009, the provisions concerning sentences attracted considerable debate, and the previous requirement for courts merely to “have regard” to any guidelines was replaced in Section 125 with courts being required to

“follow any sentencing guidelines which are relevant … unless … contrary to the interests of justice”.

That was replicated in Section 59 of the Sentencing Act 2020.

I should therefore now deal with some of the points made on behalf of, and by, the Sentencing Council. For the avoidance of any doubt, although this ought not to be necessary to say, I firmly believe in the independence of the judiciary. Indeed, I believe that we have the finest judiciary in the world. But that does not mean that one cannot respectfully respond to points that have been made publicly on behalf of the Sentencing Council to the Lord Chancellor. So, when the chair of the council, Lord Justice Davis, wrote to the Lord Chancellor on 10 March this year, he made the point that it is still possible for a judge or magistrate to order a pre-sentence report if they are sentencing an individual not captured within one of these demographic groups. That is, of course, absolutely true. But, with respect to Lord Justice Davis, it rather misses the point. It is the almost automatic nature of the pre-sentence reports for certain groups, and their discretionary nature for other groups, that is the issue at heart.

Similarly, in his later letter dated 27 March, the learned Lord Justice said:

“The crucial point is that a pre-sentence report will provide information to the judge or magistrate. It will not determine the sentence”—


a point made a few moments ago by the noble Lord, Lord Marks of Henley-on-Thames. Again, that is true, but, again with respect to the learned Lord Justice, although a pre-sentence report does not mean that you will get a non-custodial sentence, it is certainly harder to get a non-custodial sentence without one.

To put it bluntly, if the Minister and I were each charged with the same offence, in the same court and with the same previous criminal record, these guidelines would have meant that I would almost certainly get a pre-sentence report, and he might or might not. That would mean that my chances of a non-custodial sentence were better than his, simply because I am a member of a minority faith community. That, I suggest, is entirely unjustifiable.

It is no answer to that point, I suggest, to say that there are disparities in sentencing in our criminal justice system for certain groups. There are those disparities, and we need to understand why they exist and work to eradicate them. But these guidelines are not and never were the answer to that problem, for three reasons. Like my noble friend Lord Jackson of Peterborough, I add that I am also indebted to Policy Exchange’s paper by David Spencer, and especially to the person who contributed research support for it.

First, the guidelines did not target only those groups where we see disparities. Black defendants, for example, do appear to receive longer sentences for the same offence than do white defendants. But, to take an example of a minority faith community, do Jewish defendants receive longer sentences? I have seen no evidence of that, and it does not appear that the Sentencing Council did either. These guidelines were therefore not properly targeted at what it said was the problem.

Secondly, as the Minister reminded us, the reason why black defendants receive longer sentences—to use the words of Lord Justice Davis’s own letter—“remains unclear”. What is clear is that the reasons are complex, as the noble Baroness, Lady Mattinson, reminded us, and do not—or certainly do not necessarily—involve bias on the part of sentencers.

I am sure that many noble Lords are, like me, devotees of the legal podcast “Double Jeopardy”, hosted by the noble Lord, Lord Macdonald of River Glaven, the former Director of Public Prosecutions, who alas is not in his place. As I see that the noble and learned Lord Falconer of Thoroton, is also not in his place, I feel sufficiently charitable to say that his legal podcast, “Law and Disorder”, is also very good—and sufficiently brave to add that it is almost as good as that of the noble Lord, Lord Macdonald.

In his podcast recently—the noble Baroness, Lady Fox of Buckley, touched on this—the noble Lord, Lord Macdonald, pointed out that black defendants plead not guilty in a higher proportion than do white defendants, and of course sentences are higher if you are found guilty after a not guilty plea, because you lose the guilty plea discount. He pointed out that black defendants also elect for Crown Court trial proportionately more than do white defendants, and sentences are higher after conviction in the Crown Court than in the magistrates’ court. I am not suggesting those two points explain the entirety of the disparity; in fact, I am sure that they do not. There are likely to be a number of reasons for this disparity, which, I repeat, we should work to eradicate. On that point, I agree—and this is a sentence that I rarely utter—with the noble Baroness, Lady Jones of Moulsecoomb. But to get back in my normal furrow, where I disagree with her is this: you do not work to eradicate disparities by introducing additional and different discrimination into the system to somehow correct for those disparities, because there is one fundamental principle at the heart of our justice system, and it is this: equality before the law.

I am fond of the Minister, as he knows, so I do not propose to give him too hard a time in having to defend his boss, the Lord Chancellor. But the plain fact of the matter is that, despite having a representative on the council when the guidelines were discussed, the Lord Chancellor acted only once alerted to the problem by the shadow Lord Chancellor. The Lord Chancellor has said that she was not personally aware of the guidelines until Mr Jenrick’s statements brought them to her attention, and of course I entirely accept that. However, given the seniority of some of the officials attending those meetings, the guidelines should have had warning bells ringing and lights flashing in Petty France. That they did not realise that these guidelines would not be acceptable to Ministers would indicate that there might be something of a problem of groupthink. To be fair to the Lord Chancellor, once she had been alerted to it, she got to grips with the issue, including, as I am sure that noble Lords have seen, by way of a polite but sometimes feisty correspondence with Lord Justice Davis, and this Bill is the result.

However, the real issue is the relationship between the Sentencing Council and the Government and between the Sentencing Council and this Parliament. I want to take a few minutes on this topic, because it is fundamentally important and often misunderstood. While I listened carefully to the noble and learned Lord, Lord Thomas, as I always do, this is Second Reading and not Committee, so I want to take a moment to touch on this issue.

To say, as many do, that sentencing is a matter for judges and judges alone is too simplistic and, if meant literally, also wrong. Individual sentencing—that is, the sentence handed out in a particular case—is rightly a matter for, and only for, trial judges and magistrates. The Government must not be involved in that. But the setting of overarching sentencing policy is very clearly a matter for the Government and Parliament.

Here I must again disagree, and again with respect, with Lord Justice Davis, the chair of the Sentencing Council. In his 10 March letter to the Lord Chancellor, he 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.


In criminal proceedings where the offender is the subject of prosecution by the state, the state should not determine the sentence imposed on an individual offender. If sentencing guidelines of whatever kind were to be dictated in any way by Ministers of the Crown, this principle would be breached”.


I respectfully disagree with Lord Justice Davis, for three reasons.

First, as I have said, we need to distinguish between the sentence imposed on an individual offender and the wholesale policy environment in which sentencing frameworks are set. The former is for the judiciary, and the judiciary alone; the latter is not. Parliament, and therefore Ministers and government, must have a critical role in setting overarching sentencing policy and frameworks. This Bill, for example, is entirely proper constitutionally. Indeed, for many decades we did not have a Sentencing Council at all; it is a creature of fairly recent statute.

Parliament obviously has an important role in setting sentencing policy. The upper limits for the sentencing of offenders are set by Parliament through statute—for example, in the Theft Act 1968. In addition to setting maximum limits, Parliament has sometimes set minimum limits for offences, although courts can often depart from that if exceptional circumstances exist. It is important that Parliament holds the pen because, ultimately, Parliament is accountable to the electorate. The public bear the impact of crime, and it is Government Ministers who are responsible for allocating public funds to the criminal justice system of courts, prisons, probation officers, police and lawyers. Those Ministers are ultimately accountable to Parliament and the electorate.

It was striking that Lord Justice Davis took the view in his letter—a point made in some of today’s contributions—that the inclusion of these specific cohorts in the proposed guidelines was not a

“policy decision of any significance”.

The fact that both the shadow Lord Chancellor and the Lord Chancellor immediately took a different view from that of the Sentencing Council, and that we now have this Bill before us, might indicate that it was in fact a policy decision of real significance and that government and Parliament are entitled to have a role in such policy decisions. I respectfully agree with much of the speech of the noble and learned Lord, Lord Hope of Craighead.

Secondly, Lord Justice Davis’s letter implied that the judiciary accepts and follows sentencing guidelines only because

“they emanate from an independent body on which judicial members are in the majority”.

With respect, that cannot be right. Judges follow the guidelines because they are part of a legally mandated framework, set out in statute, ultimately derived from Parliament. So long as any body is properly constituted under an Act of Parliament, of course our judiciary would follow it.

Thirdly, on a point made earlier, the distinction which Lord Justice Davis draws between courts and what he calls “the state” is, I suggest, somewhat elusive. Courts are part of the state, as the Courts and Tribunals Judiciary’s own website makes clear. I assume that, when Lord Justice Davis referred to “the state”, he actually meant the Executive or the Government. I agree with him, respectfully, that the Government should not be involved in sentencing individual offenders, but the Executive, and this Parliament, should be involved in the sentencing framework and in sentencing policy.

To that end, I invite the Minister to let us know whether as part of their thinking about the Sentencing Council the Government are again considering a proposal, not taken up by the majority of the working group which led to the establishment of the Sentencing Council, that sentencing guidelines from the Sentencing Council before they are implemented should be subject to approval by Parliament. Would he also tell us whether the Government are considering whether the House of Commons Justice Select Committee, which at the moment is a statutory consultee of proposed guidelines after they have been formulated, might itself have a representative on the council?

These are constitutional matters. I respectfully disagree with the noble Lord, Lord Marks of Henley-on-Thames, as to the answer to them, but we agree that these matters raise fundamental constitutional points. For those reasons, I look forward to working on this short but important Bill as it passes through this House. I am very grateful to the Minister for his engagement to date, and no doubt the House in all its quarters will debate in its usual way and seek to improve this Bill in its future stages.

18:19

[Lord Timpson (Lab)]

I start my closing speech by paying tribute to the noble and learned Lord Etherton. Being relatively new to this place, I never got to know him, but it is clear how much he was deeply respected and admired. He has been described as a kind person, which is something that I hope one day would be my epitaph.

I thank noble Lords for their valuable contributions over the course of today’s debate. The depth of knowledge and experience in this House has certainly been on full display. It has also been a pleasure to be in this place for the maiden speech of my noble friend Lady Nichols of Selby. I warmly welcome her to this place and look forward to working with her in the years to come, as she clearly has a lot to contribute.

I thank noble Lords who have raised perceptive questions over the course of today’s debate and those who have spoken to me privately. I hope they will feel that I have addressed their points in my closing remarks. If I do not cover them now, I will follow up in writing to address their points. As the noble and learned Lord, Lord Hope, said, words matter. I hope that my closing words matter and are helpful in answering noble Lords’ questions.

As I set out in my opening speech, the Sentencing Council’s revised imposition guideline risked differential treatment before the law. As we have discussed, this Bill is not about the wider role and powers of the Sentencing Council. It is not about restricting the use of pre-sentence reports. In fact, this Government are committed to increasing the use of pre-sentence reports. Rather, it is about the very specific issue of the Sentencing Council issuing guidelines on pre-sentence reports with reference to an offender’s personal characteristics, rather than all the relevant facts and circumstances of the case.

A number of noble Lords, including the noble and learned Lord, Lord Phillips, the noble Baroness, Lady Hamwee, the right reverend Prelate the Bishop of Gloucester and the noble Lord, Lord Bach, have asked why this Bill is necessary and whether it was possible to resolve the matter with the Sentencing Council without primary legislation. In response, I would explain that we first exhausted all other options prior to introducing this legislation. The imposition guideline was due to come into effect on 1 April this year. Ahead of this, the Lord Chancellor used her existing power to ask the Sentencing Council to reconsider. Unfortunately, the Sentencing Council declined to revise the draft guideline. It was right, at that point, to act quickly to introduce the legislation.

As a result, the Sentencing Council decided to put the guideline on pause while Parliament rightly has its say, and we are grateful to it for doing so. By acting quickly, we prevented a guideline coming into effect which risked differential treatment before the law. This legislation has been necessary to achieve that and to clarify this Government’s commitment to equality before the law.

Noble Lords, including the noble Lord, Lord Beith, have questioned the scheduling of this Bill. I reassure noble Lords that the dates for Committee and Report have been agreed in the usual channels in the usual way.

The noble Lord, Lord Jackson of Peterborough, the right reverend Prelate the Bishop of Gloucester, the noble Baroness, Lady Fox, and my noble friend Lady Mattinson have spoken about the importance of trust and consistency in the justice system. As the speed with which we introduced the Bill demonstrates, this Government are definitive in their stance with regard to equality before the law. The issues that have been raised with regard to disproportionality in our justice system are the domain of government, politics and Parliament. This Bill serves to reassert our ability to determine this country’s policy on the issue of equality of treatment before the law.

As my noble friend Lady Mattinson set out, we must work to preserve trust in our excellent legal system. I thank her for sharing her considered views on this. It is essential to victims that they are able to trust our legal system and know that everyone will be treated equally before the law. Implementing a sentencing guideline that could lead to differential treatment before the law puts trust in the legal system at risk, which is why we acted quickly to address this.

To address the question from the noble Lords, Lord Jackson and Lord Wolfson, about what this Bill means for the future of the Sentencing Council, I reiterate that the Sentencing Council has done valuable work, bringing consistency to judicial decision-making. However, developments on the imposition guideline have clearly revealed a potential issue, where the council is dictating policy that is not this Government’s and that does not express the will of Parliament. The Lord Chancellor is therefore reviewing the powers and function of the Sentencing Council. It would not be appropriate to deal with that wider issue through fast-track legislation, given the significant policy and constitutional issues involved. It is right to take the time to consider more fundamental reform like this. The Lord Chancellor will be considering all options and I know that many in your Lordships’ House will have valuable experience to contribute.

The noble Baroness, Lady Hamwee, and other noble Lords asked how this Bill interacts with the review of sentencing being led by David Gauke and ably supported by the noble and learned Lord, Lord Burnett. I reassure noble Lords that this Bill will not have any impact. This Bill is addressing the specific matter at hand regarding the Sentencing Council guidelines. The sentencing review is a wider review of sentencing, and we look forward to considering its recommendations in due course.

I turn now to the questions over the detail of the Bill, which were raised by the noble and learned Lords, Lord Thomas and Lord Hope, the noble Lords, Lord Verdirame, Lord Beith, Lord Bach and Lord Wolfson, and the noble and right reverend Lord, Lord Sentamu. What is clear from this debate is the Government’s objective to help ensure equality before the law. We are clear that an offender should be judged by a court on an individual basis, according to the particular facts and circumstances of their case. It is not for the Sentencing Council to set out in guidance that judgments should be made on the basis of personal characteristics such as race or ethnicity.

The Government have used the broad term “personal characteristics” to make it clear that any reference to preferential treatment for particular cohorts is unacceptable. The Bill states that personal characteristics include race, religion or belief, and cultural background, but these are examples and not a comprehensive list. “Personal characteristics” is intended to include a wide range of characteristics, such as sex, gender identity, physical disabilities and pregnancy status. This is broader than the concept of “protected characteristics” in the Equality Act, which is a closed list and not wide enough to address, for example, the reference in the guideline to being a member of a cultural minority.

After careful consideration, the Government have therefore concluded that the most appropriate and principled way to respond to the issues raised by the guideline is to use the broader concept of “personal characteristics” in the Bill. The term “demographic cohort” is used in the Bill’s Explanatory Notes. However, the use of “demographic cohort” was not intended to, and I believe does not, narrow the definition of “personal characteristics”. A demographic cohort is a way of describing people who share certain personal characteristics. It is used in the Explanatory Notes to provide additional context to the Bill, but it would not be an appropriate alternative to the current drafting and would, in my view, raise further difficult questions of definition regarding what amounts to a “demographic cohort”. The term “personal characteristics” is used and understood in other contexts, and the Government consider it is the best formulation to address the issues raised by the guideline.

The noble Lord, Lord Bach, raised concern over whether this Bill interferes with judicial independence. To be clear, this Bill does not in any way influence individual sentencing decisions. Individual sentencing decisions clearly remain a matter for the independent judiciary. However, as I have said previously, the issue of tackling disproportionate outcomes within the criminal justice system is a policy matter and should be addressed by Government Ministers. The narrow change introduced by the Bill targets aspects of the sentencing guidelines that relate to equality of inputs. We are therefore addressing a policy matter and are not encroaching on judicial independence.

It is regrettable that some of the recent debate has strayed into comments about individual judges and their decision-making. I know that the noble Lord, Lord Bach, will be reassured that this Government will always support judges to do their jobs independently. I know that the Lord Chancellor takes her duty to defend judicial independence very seriously. As a number of noble and noble and learned Lords have said today, we are very lucky to have a world-class and highly regarded judiciary.

The noble Baroness, Lady Hamwee, the right reverend Prelate the Bishop of Gloucester, the noble Lord, Lord Marks, and the noble Baronesses, Lady Fox and Lady Nichols of Selby, have rightly raised concerns about probation capacity, which is something that I think about in my role on a daily basis. One knock-on effect of this is the consistency and quality of pre-sentence reports. This Government support the wider use and improvement of pre-sentence reports within our courts. I agree with the noble Lord, Lord Jackson, that they can be valuable in all cases and for all defendants, regardless of their membership of a certain cohort, and should be obtained unless a judge believes that they are unnecessary. We are committed to ensuring that pre-sentence reports are available when needed.

The noble Baroness, Lady Hamwee, asked what will happen to pre-sentence reports that are being prepared when the Bill comes into effect. I reassure her that there will be no impact on pre-sentence reports in the process of being prepared. This Bill is not about the ability of a court to request a pre-sentence report. The test remains that, under section 30 of the Sentencing Code, a PSR should be requested unless it is considered unnecessary. This is about council guidelines and the need to protect the principle of equal treatment before the law.

We have publicly outlined the steps we are taking to increase capacity in the Probation Service to enable it to undertake more valuable work such as this. Next year, we will bring 1,300 additional new trainee probation officers on board, but as noble Lords are well aware, and I have spoken to a number of noble Lords privately about this, it takes time to train and induct new staff to allow them to become the brilliant probation officers we so highly value. I have a lot to do to help our fantastic probation staff achieve what we know is possible in the service.

To support our probation staff, we are embracing technology, including AI. Work is ongoing that is improving the flow of information—so critical to an accurate assessment of an offender’s risk—and new tools are beginning to strip away a probation officer’s administrative burden. There is much more work still to do. However, given the challenges the Probation Service faces, new staff and better processes are not sufficient on their own. We need to think about how we use the Probation Service, which faces a case load of just over 250,000 offenders, more effectively.

The theme of the debate, highlighted by the noble Lord, Lord Marks, has been tackling disproportionality across the criminal justice system. We know that more must be done to address inequalities and we are committed to tackling racial disparities, as I am sure the noble Baroness, Lady Jones, will be pleased to hear. As the Lord Chancellor set out in the other place, and the noble Lord, Lord Wolfson, has questioned, she has commissioned a review into the data held by the Ministry of Justice on disparities, and we will carefully consider next steps. We are also taking action to increase diversity in our staff and working with the judiciary to make sure that our appointments are reflective of the society we serve. This has included supporting underrepresented groups to join the judiciary.

A particular concern was raised by the noble Baroness, Lady Jones, about how the Bill may impact on women—in particular, pregnant women. As the chair of the Women’s Justice Board, I have paid particularly close attention to this matter and have also spoken with board members. To be clear, nothing in the Bill prevents judges requesting pre-sentence reports for pregnant women, nor will it affect Court of Appeal case law, which states that a pre-sentence report is desirable in the case of pregnant or postnatal women. Judges will therefore continue to be able to request pre-sentence reports in cases where they ordinarily would, including, for example, appropriate cases involving pregnant women, and we expect this to continue. We are committed to achieving equal outcomes for women.

In conclusion, this is a targeted and specific Bill which serves to protect the important principles of equality before the law. I thank all noble Lords who have taken part in this debate and I look forward to engaging with them as the Bill progresses.

[Baroness Hamwee (LD)]

My Lords, before the Minister moves the Second Reading, he told the House, in justifying why the term “personal characteristics” is used here, that it is used in a number of contexts. I do not expect him to answer in detail now, but will he write to the House to explain what those contexts are so that we have them in our minds as well?

[Lord Timpson (Lab)]

I will very happily write. As noble Lords are aware, I am not an expert on the finer details of the law, so that would actually help me as well. I beg to move.

Bill read a second time and committed to a Grand Committee.