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Lord Barber of Ainsdale
“Unpaid work requirements: community work(1) The Sentencing Code is amended as follows.(2) In paragraph 3 of Part 1 of Schedule 9 (restriction on imposing unpaid work requirement), after sub-paragraph (1)(b), insert—“(c) that the unpaid work is work undertaken for a non-profit organisation, social enterprise, voluntary organisation or local authority.”.”Member’s explanatory statement
This new clause would prohibit private sector involvement in unpaid work as part of a community sentence.
Lord Barber of Ainsdale (Lab)
My Lords, I rise to move this amendment on behalf of my noble friend Lord Woodley, who is a little unwell today. Amendments 77 and 135 are in his name.
As a lifelong trade unionist, I have seen too often the damaging impact that privatisation can have on public services; in pursuit of maximising profit, costs are too often cut to the bone, often starting with workers’ pay, terms and conditions. The quality of service goes down, while the cost to the taxpayer goes up, and we are left with the worst of both worlds.
Privatisation has failed especially badly when it comes to the justice system. Probation is the classic example: it was part-privatised by the last Government, who had to renationalise it five years later because the service was close to collapse. Take prisons: private prisons are on average 47% more violent than public prisons, according to research published by the Guardian. Yet still we build more of them, with, of the three new prisons announced by the Government, two to be run for profit. Quite apart from the practical problems that come with outsourcing, it seems to me to be morally wrong for private companies to profit from prisons or probation, or indeed any part of our precious justice system. With this in mind, Amendment 77 seeks to address concerns that the Ministry of Justice is preparing to let private companies profit from unpaid work orders, also known as community service.
Lord Sandhurst (Con)
My Lords, I thank the noble Lord, Lord Barber, for introducing the amendments in the name of the noble Lord, Lord Woodley. He will probably not be surprised to learn that His Majesty’s loyal Opposition cannot support Amendment 77. I note the noble Lord’s commitments, but it would simply be a foolish burden to impose more administrative obligations on the public sector. It cannot be right to bar the use of a private enterprise where appropriate; the emphasis must be on “appropriate”. That should be for the Probation Service, as the commissioning body, to determine, with the Ministry of Justice having oversight.
Of course, our justice system should not be privatised, but the single issue here is delivery. This does not mean there are not benefits to be gained from working together with the private sector, especially as the current system is hugely overburdened. We should be welcoming prudent collaboration with private companies that specialise in supplying such services to community sentences, but only where it is right to do so because they are the right people and they pass the test of competition. We should not be needlessly blocking off an avenue that helps ease this strain.
This amendment is not necessary. The Probation Service is currently in the process of regaining control of community sentences. Private community rehabilitation companies had their contracts terminated and their responsibilities transferred to the Probation Service by the last Conservative Government. Community sentence oversight and management is already in the hands of the public sector, while private and volunteer suppliers provide support services. That is how it should continue.
We are in a situation where the public sector has responsibility for running and delivering the community sentences and, at the same time, can make use of the efficiencies of the private sector for supply on the ground where appropriate. Banning public sector involvement is an attempt to fix a problem that does not exist. It would come at the cost of placing undue strain on the Probation Service. If the ministry determines that prison officers should fit tags—here, I move from one topic to the other—because it is operationally sensible, then that should be done. If it deems that it is not appropriate in one prison for one reason, it can divide it up, but let us leave it as it is.
We cannot support either of these amendments. We agree that there is merit in demarcating the Probation Service’s remit and ensuring that it remains a public service, but prisons are not in the state to be taking on board more responsibilities at this time. Rather than attempting to legislate powers into the public sector, we should allow services to be dynamic. We should allow the Probation Service and the Prison Service to make their own decisions on the most appropriate basis. They are the ones who must react to changing duties and capacities. Sometimes this will require contracting out to the private sector; sometimes it will not. Merely attempting to close off an option for ideological reasons will not help best delivery of the services we need.
Lord in Waiting/Government Whip (Lord Lemos) (Lab)
My Lords, I thank my noble friend Lord Woodley for tabling these amendments and my noble friend Lord Barber for introducing them in his absence, giving me the opportunity to clarify the Government’s position on the issues they have raised.
I appreciate that my noble friend’s Amendment 77 is founded on concerns that unpaid work will be privatised. To be completely clear, and for the avoidance of any doubt, I assure him that the privatisation of unpaid work is absolutely not being considered. The Government are clear that unpaid work must be robust and continue to pay back where it matters most: in our communities. The Government remain open to a full range of potential projects that help our communities. Were any of those to have any private sector involvement, it would be within the realms of the current requirement for the Probation Service to retain ultimate control and supervision. This requirement is unchanged and, as I say, we have no plans to change it.
For example, it is already possible for a private company to influence the type of projects offenders may complete through nominating suitable projects, such as graffiti removal in a local community. In these scenarios, the unpaid work would always be overseen by the Probation Service and the work undertaken would always serve a community purpose—I stress that point. We do not intend to privatise the delivery of unpaid work, but we should encourage joining up with local businesses and charities to determine how best to expand projects further and to deliver work that has the greatest community benefit. We believe that there is sufficient operational guidance already in place to support delivery in a way that benefits charitable, state or not-for-profit organisations and guards against exploiting any offenders for private profit.
Turning to Amendment 135, I will address the concerns that my noble friend raised. It is important to be clear that it is the responsibility of the electronic monitoring field and monitoring service provider, Serco, to perform the duty of installing and monitoring the output of electronic monitoring devices. I note the comment of the noble Lord, Lord Sandhurst, about the commitment to probation being seen as a public service. He also noted that this community rehabilitation company was brought back into the public sector by the last Government; of course, it was also the Conservative Government who put it in the private sector, where it failed, in the first place.
I recognise and deeply appreciate the vital role that the Prison and Probation Service performs. I stress that, as my noble friend Lord Timpson said, we see it as crucial to the success of these reforms. We want it to be able to focus on recovering from the challenges it faces and on becoming genuinely world-class.
The Ministry of Justice has recently launched a pilot to test the fitting of electronic monitoring devices before offenders leave the prison gates, instead of at a home visit. This goes to my noble friend Lord Barber’s third point. We are doing this so that we can begin monitoring them immediately, in the crucial period just after leaving custody. The approach is initially being tested in six prisons. I therefore reaffirm to my noble friend and the Committee that it absolutely remains the responsibilities of Serco to install tags at these pilot sites and of Probation Service staff to manage the prison leavers to whom they are applied. The pilot will be subject to proper evaluation so that we can take forward the operational learning and evidence it generates to inform future practice.
I hope that that reassures my noble friend that the changes we are making do not change the responsibilities for applying the tags. With those reassurances in mind, I hope that he will feel able to withdraw his amendment.
Lord Barber of Ainsdale (Lab)
I thank my noble friend the Minister for his response. On Amendment 77, I noticed that he placed proper emphasis on payback to our communities from the unpaid work we are discussing, but I would hope that proper consideration is also given to payback to prisoners who face this form of punishment during their terms.
This is comparable to other community work schemes in many ways, and in previous job creation programmes there have been strong emphases on the quality of training provided and the safeguards against displacement and substitution of paid jobs. Those are important considerations that need to be taken into account in considering the programmes we are discussing in respect of prisoners.
On Amendment 135, I note and am pleased to hear what the Minister says about Serco continuing to have that key responsibility. In the light of the response on both these amendments, I am prepared to withdraw Amendment 77 and not press Amendment 135.
“Sentencing CouncilThe Sentencing Council of England and Wales is abolished.”
Lord Jackson of Peterborough (Con)
My Lords, I will also oppose Clauses 18 and 19 standing part of the Bill, and I oppose Amendments 81, 82 and 83 in the names of the noble and learned Lords, Lord Burnett of Maldon and Lord Thomas of Cwmgiedd, for reasons which I will allude to and develop later.
As your Lordships’ Committee will know, the Sentencing Council exceeded its powers earlier this year when it issued the Imposition of Community and Custodial Sentences guidelines, to come into effect on 1 April 2025, in respect of pre-sentence reports, which gave rise to complaints of two-tier justice. This was in respect of individuals from “ethnic, faith and cultural minority groups”. Of course, what we eventually had as a result of the dispute between the late chair of the Sentencing Council and the then Lord Chancellor was the Sentencing Guidelines (Pre-sentence Reports) Act 2025.
I do not propose to relitigate the issues around that legislation because it was primary legislation and there were comprehensive debates in both Houses about it, but it is important to remember that that is context for the debate and discussion on the efficacy and long-term future of the Sentencing Council. Noble Lords will know that that Act got Royal Assent on 20 June this year.
The background was that the Sentencing Council wilfully refused to amend its guidelines, despite being asked to do so by, effectively, this House and the other place, and the Executive and Parliament through the Lord Chancellor. As your Lordships will know, magistrates and the judiciary must follow such guidelines under Section 59 of the Sentencing Act 2020 and Section 120 of the Coroners and Justice Act 2009. The then Lord Chancellor correctly argued that the newly imposed guidelines represented differential treatment and two-tier justice.
The Sentencing Council is an independent non-departmental body sponsored by the Ministry of Justice, and it was created in 2009 and commenced its work in April 2010. As such, it is in the great scheme of things quite a new body—a successor respectively to the Sentencing Advisory Panel and the Sentencing Guidelines Council, both since abolished. The important point is that it is entirely the product of legislation, and that legislation could be repealed as easily as it was created. It was described by Professor Richard Bellamy in 2007 as an example of “political constitutionalism”, whereby the protection of minority rights undermines the protection of majority opinion, leading to its neglect.
The imbroglio over pre-sentence reports illustrates the fundamental issues at the heart of my amendment: judicial independence, and the role of Ministers and Parliament in sentencing policy. While the ability of the judiciary to set, and its role in setting, individual sentences—certainly prior to 1998—has been wide and permissive, Parliament has always had, and should have, a pre-eminent role, the upper limits when sentencing offenders being set through statute, such as Section 1 of the Sentencing Act 2020. That is something Parliament has always been jealous of in terms of its role in the sentencing framework.
Parliament should not involve itself in individual sentencing decisions—that is for trial judges, magistrates and appellate courts—but, quite rightly, it should and does, through Ministers, determine a broad sentencing policy framework. That is the delicate balance between democratic accountability and judicial independence, which the Sentencing Council upset and, frankly, transgressed. In supporting the new guidelines, the Sentencing Council violated the historic and fundamental principle at the heart of our judicial system: equality before the law. Commendably, and to her credit, the then Lord Chancellor—now the Home Secretary—made that point very strongly in the other place and throughout the passage of the legislation there.
The dispute last year pointed to another broader and wider phenomenon leading to a democratic deficit: the decisions of non-departmental public bodies and arm’s-length bodies lack legitimacy and proper accountability to elected Ministers and their electors and taxpayers. To quote the Times leader, which was cited in the other place by my honourable friend Sir Christopher Chope in March 2010,
“arm’s-length bodies … have often been favoured by ministers as a way of distancing themselves from contentious issues … Free of the need to answer to voters, ALBs can go rogue … in the face of public opposition”.
My honourable friend added:
“The Sentencing Council is not unique in being able to ignore the wishes of Ministers and Parliament”.—[Official Report, Commons, 14/3/25; col. 1452.]
I do not suppose that the Government will support this amendment, but they should certainly commit to ensuring that all further sentencing guidelines produced by the Sentencing Council be confirmed via order in Parliament prior to coming into effect. It should put beyond doubt that ethnicity, race, religion and membership of a “cultural minority” is no longer a factor in determining either a court sentence or pre-sentence reports.
Finally, the amendment focuses on not just the concerns of two-tier justice but democratic accountability, judicial activism, and the proper constitutional balance between the legislative and judicial branches. Fundamentally, we do not need the Sentencing Council. The Court of Appeal, prior to 1998, created judgments and authorities that established a body of case law refining some of the principles of sentencing, to give sentencing judges the ability to make those decisions. There was little or no evidence of sentencing inconsistency or lack of uniformity, of judicial independence being compromised, or of a lack of public support for or understanding of how sentencing works. For those reasons, I beg to move.
Lord Burnett of Maldon (CB)
My Lords, perhaps rather surprisingly, I find myself in agreement with the noble Lord, Lord Jackson, in seeking to remove Clause 18—but for polar opposite reasons. The noble Lord seeks to abolish the Sentencing Council; I wish to protect it from interference.
Abolition would be a retrograde step, which would undermine consistency in sentencing and destroy a structure that has evolved over 25 years. It has ensured that both sentences imposed and the impact of those sentences are properly informed by evidence, research and consultation, so I oppose the abolition of the Sentencing Council.
I shall explain why Clause 18, which requires the Sentencing Council to publish a business plan, over which the Lord Chancellor appears to be given control, should not stand part of the Bill. I shall also speak to Amendments 81 to 83 standing in my name, which seek to remove the veto that the Bill puts in the hands of the Lord Chancellor over the publication and introduction of sentencing guidelines.
First, I will spend a couple of minutes outlining the background to the Sentencing Council, to which the noble Lord, Lord Jackson, has made some reference already. The Sentencing Council was established by the Coroners and Justice Act 2009. The Act makes provision for 14 members, eight of whom are judicial, ranging from at least one Lord Justice to a magistrate, and six non-judicial, who must be drawn from those with experience of criminal cases in the courts, from policy, from those familiar with sentencing and the interests of victims, and from those who understand statistics and are involved in the academic study of sentencing and rehabilitation of offenders. The DPP, a senior police officer and a victims’ representative are members.
The Sentencing Council produces guidelines or amendments to guidelines in draft, having conducted extensive research. Those drafts are then consulted upon widely and, in particular, both the Justice Committee of the House of Commons and the Lord Chancellor are statutory consultees. Moreover, and importantly, the Lord Chancellor has a representative, who attends all meetings of the Sentencing Council and may speak at such meetings.
The Sentencing Council is, by statute, charged with monitoring the effect of guidelines in promoting consistency in sentencing and on public confidence. It must report on the effect of its guidelines on prison places and resources for probation. As the noble Lord, Lord Jackson, has noted, courts must follow guidelines unless it is in the interests of justice not to do so.
The Sentencing Council did not spring from nowhere; it was preceded by the Sentencing Guidelines Council, a creature of the Criminal Justice Act 2003. That produced guidelines to which the courts were required to have regard, but it was a much less sophisticated and less well-informed body than the Sentencing Council. Before that, the Sentencing Advisory Panel began work in 1999, and its function was to advise the Court of Appeal when it was considering producing a guideline case.
Before that, the Court of Appeal had no structured help from anywhere. The responsibility for producing guideline cases rested entirely with the Court of Appeal. In fact, they were relatively few and far between, so those who were sentencing offenders had to delve through a four-volume, loose-leaf work, which, from memory, was updated a couple of times a year. What followed was much better.
Clause 18 requires the Sentencing Council to submit a business plan to the Lord Chancellor for approval after the beginning of a financial year, setting out what guidelines it proposes to prepare and identifying its other activities. If the Lord Chancellor approves, the Sentencing Council would be required to publish the business case. At Second Reading I asked what this was all about—what its purpose was and what the consequences would be of a failure of the Lord Chancellor to approve. With respect to the Minister, there was no explanation forthcoming in his response at the end of the debate.
This provision, Clause 18, is, frankly, pointless. Failure to approve would not prevent the Sentencing Council doing what it planned to do. It looks like an attempt at a control mechanism of some sort—or at least a stick to wave over the Sentencing Council. The Sentencing Council is already under a statutory duty to publish an annual report on all its activities at the end of the financial year, with detailed statutory provisions of what must be contained within that report. With the greatest respect to the Government, if they are unable to come up with a coherent explanation, indeed any explanation, of what mischief this clause is designed to remedy and what its intended effect is, it really should not be in the Bill.
Lord Thomas of Cwmgiedd (CB)
My Lords, I have added my name to the amendment in the name of my noble and learned friend Lord Burnett of Maldon and the proposition in the name of the noble Lord, Lord Jackson of Peterborough, that Clause 18 should not stand part of the Bill. I have done so because it is important that we see this as a constitutional issue.
It is necessary to go back to the achievement of the last Labour Government. Some still mourn the loss of the position of Lord Chancellor, and tonight is not a time to go into why there had to be change. It is important to go back to those times to see what the abolition of the office of Lord Chancellor entailed. In many respects, he—and it was a he, save in the case of Matilda the Queen—acted as the linchpin, a person who could bring together the judiciary, Parliament and the Executive. When that linchpin was taken away, it became necessary to look for a mechanism through which the three separate branches of the state, each with their own independent position, could act and work together reflecting what is inevitable in a state—their interdependence.
Out of the change that was made—which was somewhat hurried, if I recall correctly—there was born a series of mechanisms to balance the constitution. There was the concordat agreed, which dealt with problems such as the appointment of leadership judges, which was a joint and shared responsibility of the Lord Chancellor and the Lord Chief Justice. There was then the need to look again at the way the rule committees worked, because sometimes one forgets how vitally important it is that the rules work well, that Parliament has its input and that the judiciary and all those other interested parties have their input in producing rules of procedure that work. When you talk to people in other countries, you see what a huge advantage we have here. I mention these examples—and there are many other instances, which I will not weary your Lordships with at this hour of the night—that reflect what is, I feel, the spirit that was created by the previous Labour Government, which endured very well under the Conservative Government, but which is now being undermined by the particular changes being made here.
My noble and learned friend Lord Burnett and the noble Lord, Lord Jackson, have both explained how the Sentencing Council evolved, and I do not think it is necessary to go over that ground again. But it is necessary to say that the Sentencing Council was born in the spirit of needing to create the interdependent relationships between the three branches of government. The great thing about all the reforms that were made is that, by and large, they have worked. Of course, when you have three different bodies, there are bound to be hiccups, and there was a hiccup earlier this year. But one has to look and see what the achievement was and how it worked.
What the Sentencing Council did was to bring together the respective responsibilities. Parliament’s responsibility is setting the framework. Generally speaking, until we had the clauses that we discussed examples of earlier in Committee and which are of a completely unnecessary complexity, Parliament’s function normally was to set the broad brush of sentencing policy; unfortunately, it has gone away from that, much to everyone’s cost. The judiciary then pass the sentences, though they previously had, as the noble Lord, Lord Jackson, and my noble and learned friend Lord Burnett explained, issued guideline cases to achieve consistency. Then the Executive are involved because after all, they have to find the money to deal with the punishments, and they have to administer the system. So, it is necessary to have the input of all three if the sentencing framework is to be set by Parliament, the judges are to do their job and the prisons and penal system are to work as intended. In balancing those three interests, it was essential to have an independent council that could bring everyone together.
The great success of this is that it has worked. Now, why did it work? Why was it successful? Well, I recall, it must have been in 2009 that the then Lord Chancellor, Mr Straw, and the then Lord Chief Justice, Lord Judge, working no doubt at about this hour of the night, if I recall it correctly, in their shirt sleeves, were looking at the detailed clauses and agreeing the composition of the council—it went to that level of detail at the highest level. The compromise was made, and a successful institution was created; and successful it has been because it had virtually completed producing the guidelines by the time of the row that occurred earlier this year.
I would simply say that the idea of a constitutional settlement, carefully worked out in the spirit that was born in our renewed constitution in 2005 and in the actions taken in 2009, is the way in which we should do things if they are to result in success. Now, there was the hiccup earlier this year—I do think it is probably right to call it a hiccup, as it really was not much more than that if one looks at it and stands back. It is a pity it could not have been resolved there and then, but it cannot be any excuse for altering the delicate mechanism created by the previous Labour Government. There is no justification for it whatsoever.
It seems to me that there are two points. First, Clause 18 ought not to stand part of the Bill: it seems an absurd thing to say that the plan of an independent body has to be decided by one of the three parties that is involved. It would be a good idea, maybe, if all three were involved in looking at the plan, but why one of them? It makes no sense, and it tears up the carefully agreed compromise that was struck. Secondly, it would be much better if Clause 19 did not stand part of the Bill, because that is another aspect of this Government’s desire to tear up, for wholly unnecessary reasons, a proper compromise made by their predecessors in 2009.
However, I agree with my noble and learned friend Lord Burnett that we should go along in the spirit of compromise, but I regard that as a compromise, and it is one that I would hope the Government would accede to, and not pursue the destruction—because that is what it is—of the careful balance worked out by the late Lord Judge and by Mr Straw.
Lord Marks of Henley-on-Thames (LD)
My Lords, I oppose Clause 18 and Clause 19, and my preference is, quite definitely, for both clauses to be removed from the Bill. I have not signed the opposition by the noble Lord, Lord Jackson, to Clause 18 standing part, because his reasoning is rather different from mine, but Clause 18 is, frankly, very strange. It is certainly pointless, just as the noble and learned Lord, Lord Burnett of Maldon, said, but it is also, with the greatest of respect to the Government and the drafters of the clause, legislatively illiterate.
I can see no reason in practice for the Sentencing Council to submit a business plan to the Lord Chancellor for approval as soon as possible after the beginning of the year—one wonders when that is supposed to be. But if there is to be a business plan, it is a strange imposition of a new duty on the Sentencing Council that it must declare in advance what it proposes to study, research and support during the course of the coming year without knowing what is coming down the track during the course of the coming year.
In any event, a business plan is pre-eminently a document for the body that is responsible for it and producing it itself to decide in its own discretion and to determine what it puts into it. Clause 18 demonstrates a serious lack of trust in the Sentencing Council to manage its business. Why should the Sentencing Council submit any business plan for approval by the Lord Chancellor, a member of the Government—with, certainly, an input into the Sentencing Council, but not a decisive or determining input?
Is it suggested that the Sentencing Council would not be entitled to consider other matters in the year, unforeseen at the beginning of the year, if they were not in the business plan? If that is not so suggested, what is the point of the business plan? It does not delineate the responsibilities that the Sentencing Council will carry out.
The clause represents an attack on the independence of the Sentencing Council. We have heard from both noble and learned Lords that it was set up by statute to be an independent body tasked with advising sentencing judges on the principles they should apply to sentencing—within the terms of the law as provided by Parliament in statute and the common law, of course, but independent in its advice to judges.
Lord Keen of Elie (Con)
My Lords, I must confess that as I read the provisions of this Bill, it triggered a childhood memory. The late Dr Dolittle curated a number of very strange and unusual animals, which included the pushmi-pullyu: a gazelle with two heads, which faced in opposite directions at the same time.
Why would I be prone to such a memory on reading the provisions of this Bill? Let me begin with some quotations from the Government. First,
“sentencing in individual cases is a matter for our independent judiciary”.—[Official Report, Commons, Crime and Policing Bill Committee, 3/4/25; col. 211.]
Secondly,
“it is at the discretion of the independent judiciary whether to impose a suspended sentence”.—[Official Report, 26/11/25; col. 1369.]
Thirdly,
“the decision on which requirements to include in an order is a matter for the judge sentencing the case”.—[Official Report, 26/11/25; col. 1378.]
Finally:
“It is right for the judiciary to retain discretion to consider this and make the sentencing decision”.—[Official Report, 26/11/25; col. 1344.]
Yet Clause 1, in opening the Bill, says that the judiciary must apply a presumption, other than in very narrowly prescribed circumstances, so that even if a judge wished to impose a custodial sentence of a certain length, they would be unable to do so if it did not fall under a specified exemption or exceptional circumstances.
How did the Minister endeavour to bring this together in the first day of Committee? He said that
“it is at the discretion of the independent judiciary whether to impose a suspended sentence”,—[Official Report, 26/11/25; col. 1369.]
following the “appropriate guidance” of the Sentencing Council. But this guidance is now to be in the control of the Government, by virtue of the Lord Chancellor’s veto, thereby potentially eliminating any sense of “independence”.
So I ask the Minister: in which direction is this two-headed Bill going to proceed? It cannot walk in two different and diametrically opposed directions at the same time. Is it towards the goal of judicial independence, or towards the goal of executive control? The noble and learned Lord, Lord Burnett of Maldon, concluded by saying that these provisions were wrong-headed. I think they are even worse: they are double-headed, and that has to be resolved.
Lord Lemos (Lab)
My Lords, I thank the noble Lord, Lord Jackson of Peterborough, and the noble and learned Lords, Lord Burnett of Maldon and Lord Thomas of Cwmgiedd, for tabling these amendments. I am very grateful for their continued and constructive engagement on the Bill.
Amendment 80, tabled by the noble Lord, Lord Jackson of Peterborough, proposes to abolish the Sentencing Council for England and Wales. The noble Lord’s prediction is correct: I put on record that we strongly believe that it is right to retain the council, in view of the continued importance of its work in developing sentencing guidelines. He does not look completely surprised.
Over time, the council has developed offence-specific guidelines covering hundreds of offences, alongside a series of overarching guidelines. These guidelines have helped bring greater consistency, transparency and public understanding to the sentencing process. We welcome that.
The council also holds an important constitutional position, as mentioned by the noble and learned Lord, Lord Thomas, within the firmament of our justice system. It bridges the interests and responsibilities of Parliament, the Executive and the judiciary on sentencing policy and practice, while protecting the important responsibility of judges and magistrates to make individual sentencing decisions—I think I am reflecting what the noble and learned Lord said. For these reasons, I am afraid we do not support the amendment from the noble Lord, Lord Jackson. I urge him to withdraw it.
I turn to the amendments tabled by the noble and learned Lords, Lord Burnett and Lord Thomas. They have indicated quite clearly their opposition to Clause 18 and propose an alternative approach to Clause 19. I am grateful for their careful consideration of this. Their concerns are shared by the noble Lord, Lord Marks. I know that they were experts in this field and their opinions therefore carry a great deal of weight with the Government. As the Minister made clear at Second Reading, in bringing forward these clauses we are aiming to maintain public confidence in the guidelines that the council produces, particularly in view of the sustained public scrutiny that the council has been under of late, which is partly reflected in these debates.
Events surrounding the imposition guideline, on which I do not propose to dwell but which obviously I need to reference, earlier this year highlighted an example of the issues that can arise where guidelines cover areas of policy that should properly be for Ministers and Parliament to determine. We are keen to avoid a similar scenario arising in future, and that is why Clauses 18 and 19 have been drafted to introduce approval measures that provide greater democratic and judicial oversight of the council’s work.
I recognise that noble Lords, including the noble Lord, Lord Marks, are keen for more information about the intention of Clause 18. Put briefly, this clause will allow the Lord Chancellor to have a greater say over the guidelines that the council intends to develop across the year, ensuring that any plans are properly reflective of wider priorities across government and Parliament and with the wider public. As no noble Lord has so far mentioned this, I should stress that in preparing this clause we have had regard to similar provision that exists for comparable bodies across the justice system, such as the Law Commission.
Lord Thomas of Cwmgiedd (CB)
Will the Minister explain why the Law Commission, which is a body that looks at law reform for the Government, is to be equated with the independent Sentencing Council, which constitutionally balances the three interests? It would be very helpful to have that explanation. A second explanation it would be helpful to have is: is it intended that the business plan sets out in detail what is going to be in the guidelines so that the Lord Chancellor can look through it to see whether there is likely to be the kind of short sentence or two that occurred in this guideline that is unacceptable? It would be very interesting to know the Government’s thinking on both these points.
Lord Lemos (Lab)
I take the point that the noble and learned Lord makes that the Law Commission is different. That is why I said that we have had regard to that. On the second question that the noble and learned Lord raises, perhaps I can come to that in just a moment.
Clause 19 provides that the council can issue definitive guidelines only if the Lord Chancellor and the Lady Chief Justice each individually approve them. The amendments from the noble and learned Lords propose instead that the council should be free to issue definitive guidance unless both the Lord Chancellor and the Lady Chief Justice indicate that they do not consent. While I appreciate the sentiment and the spirit of compromise behind these amendments—which the noble and learned Lords, Lord Burnett and Lord Thomas, also referred to— I am afraid that we are not convinced that they would be the best way of securing the public confidence in sentencing guidelines that we seek. This is because they run the risk of definitive guidelines being published and implemented for use by the courts, even if the Lord Chancellor or, indeed, the Lady Chief Justice had indicated their discontent with them. We consider the current drafting of Clause 19 to be a practical and effective means of achieving our policy objective because it provides that the consent of the Lord Chancellor and the Lady Chief Justice must first be obtained before a definitive guideline can be published and implemented.
I emphasise that, in developing our current drafting, we have sought to reflect the distinct roles and responsibilities that the noble and learned Lord, Lord Thomas, referred to between Parliament, the Executive and the judiciary, as well as the careful balance that has been established for sentencing policy and practice. In particular, we are clear that these approval measures do not interfere—I hope that this is obvious, but I will emphasise it anyway—with the judiciary’s responsibility for setting sentences in individual cases.
Baroness Hamwee (LD)
I may have missed it, but I am still unclear about what happens under Clause 18 and new Section 118A. If there is no approval of the business plan from the Lord Chancellor, does the Sentencing Council continue with its work as if there were a business plan and make it up as it goes along? I am sure that it does not quite do that, but the clause does leave the position hanging.
Lord Lemos (Lab)
That is precisely why we want to engage in further discussion to try to take some of that forward.
Lord Jackson of Peterborough (Con)
I assume that the Minister is indicating that I should withdraw my amendment. This has been a fascinating, fluent and well-argued debate. Obviously, I have been beset by a surfeit of eminent jurists this evening; they certainly gave the lie to the saying that lawyers are the only people in whom ignorance of the law is not punished.
The interesting thing is that, although I agree with the noble and learned Lords on the Clause 18 and Clause 19 stand part notices, that is a logical corollary of the fact that I wish to see the abolition of the Sentencing Council and therefore do not find myself coming from the same position. So I am an example of a “push-me pull-me”: I find myself agreeing with their objective but vehemently disagreeing with their rationale and reasoning.
I will quickly say two things. I slightly take issue with the noble and learned Lord, Lord Thomas, because it was not just a slightly irrelevant mix-up at the beginning of the year; it was quite a constitutional tempest. It is very unusual for the Government to bring forward emergency legislation, in effect, very quickly as a result of the behaviour or conduct of an arm’s-length body. Serious constitutional ramifications arose from those decisions. Obviously, the Government solved that matter with cross-party support.
I totally agree with the very astute point made by my noble and learned friend Lord Keen of Elie. There is a dichotomy at the heart of this Bill around the interference or otherwise of the Government and the imperatives they are giving to the judiciary. That needs to be resolved by the time this Bill gets Royal Assent.
With all those caveats being ventilated, and bearing in mind, as I predicted, that the Minister was very unlikely to agree with me, I will seek to withdraw my amendment.
I should also say that I of course meant the Times leader of March 2025 and not 2010, for the benefit of the official record; that was an error on my part. With that being said, I beg leave to withdraw my amendment.
Lord Burnett of Maldon
Member's explanatory statement
This amendment and others in the name of Lord Burnett of Maldon to Clause 19 seek to (1) remove the proposed veto of either the Lord Chancellor of the Lord Chief Justice acting alone of the publication of new or amended guidelines, and (2) enable the Sentencing Council to publish guidelines unless both do not consent.
Lord Burnett of Maldon (CB)
I record, if I may, my thanks to the noble Lord, Lord Lemos, and to the Minister, in the broader conduct of this Bill, for offering to continue discussions. We have had useful discussions so far, even if they have not led very far. In those circumstances, I am content not to move the amendment.
Lord Keen of Elie
“Court transcripts of sentencing remarks(1) All transcripts of sentencing remarks made in the Crown Court must be published within two sitting days of being delivered.(2) All published sentencing remarks must be made freely available, including online.”Member's explanatory statement
This new clause would require all sentencing remarks made in the Crown Court to be published and made available to all.
Lord Keen of Elie (Con)
My Lords, I will speak to Amendments 84, 85 and 148A in my name. These amendments concern the publication of sentencing remarks, the collection and publication of sentencing data, and the review of the effect of this Bill on community and voluntary sectors once it comes into force.
The Government are, of course, of the opinion that the near blanket presumption of suspended sentences will lead to less crime in the long run. Reports have suggested, however, that it will increase offences by almost 400,000 per year. I certainly hope that the Government are right in their assessment because, clearly, safer streets is a goal which would unite all noble Lords.
If we are to assess whether this Bill is anything of a success, we need the data to support it. We on these Benches do not and will not simply accept reform based on blind faith. Reform has to be backed by accountability, visibility and evidence. Amendment 84 concerns sentencing remarks. We propose that all transcripts of sentencing remarks from the Crown Court be published and be made freely available online for the public to access.
Sentencing is not just a technical exercise. It is a moment of public judgment. A judge’s remarks concern the reasoning behind both why a particular sentence was imposed and why it was for a particular duration. That reasoning is essential for victims, families, communities and the public at large to understand what justice looks like in practice. Without that transparency, justice is done behind a veil, and that is liable to undermine confidence. In a sense, the Government agree with that principle—at least they did when their manifesto was written.
In their manifesto, they observed of criminals that
“the sentences they receive often do not make sense either to victims or the wider public”.
I suggest that the publication of sentencing remarks is key to rebuilding public confidence and holding the judicial system to account. It is trite that open justice is an essential foundation of our democracy. If sentencing is to become more complex and discretionary under the Bill, especially with the expanded use of suspended sentences and community orders, public understanding and scrutiny will become even more important.
Research by the International Association for Court Administration has shown a clear link between transparency in sentencing and public confidence in the justice system. Yet, even now, our current system remains opaque. Though sentencing remarks may be broadcast in a limited number of high-profile cases, many judgments remain inaccessible. Of course, transcripts are available, but only at cost and if requested. For many victims and their families, as well as third parties such as researchers, that is a prohibitive barrier. We must replace selective access with universal and consistent transparency, especially in the wake of this Bill.
Amendment 85 would require the courts to report key sentencing data and the Government to publish aggregate statistics at certain periods. That would provide the public with information on how many sentences are given for which offences, their length and offender demographics. If we are to place thousands more offenders under community supervision and expand the use of suspended sentences, we must be able to monitor the consequences: who is being sentenced, for what and with what impact on reoffending or public safety. Without such data, the Bill becomes a blind experiment, and we will not know whether it is achieving its objectives. We must not shy away from accountability or reject the principles that underpin democracy.
Amendment 148A addresses the impact of the Bill on the community and voluntary sectors. I am sure we all recognise that these organisations provide vital support to those most affected by crime, whether they are victims or offenders, and often they are the backbone of effective rehabilitation in the community. The Bill’s provisions will place new and substantial demands on those services, and without proper oversight we risk overwhelming the charities, community groups and voluntary agencies tasked with delivering critical interventions. Many of the arguments made in support of Amendments 84 and 85 apply to this amendment too. It would require the Government, within 12 months of commencement, to publish an assessment of the Bill’s impact on the sector. Again, that is not some bureaucratic nicety but a matter of transparency and fairness.
We cannot turn a blind eye to the practical realities on the ground. To accept this amendment is to place evidence and accountability at the forefront of this information. We owe that to this sector and the wider public. Therefore, I beg to move.
Baroness Hamwee (LD)
My Lords, I want to say a word about Amendment 84 on sentencing remarks. I was proposing to leave it until the Victims and Courts Bill, but this gives me an initial run at it, as it were. I am glad to have the opportunity to ask the Minister for an update on the MoJ’s work on this. At a 3 September meeting of the Constitution Committee, of which I am a member, I asked the then Lord Chancellor about progress in this area. She said:
“I do not believe we are far from having a tech solution that meets the test of accuracy … we are testing market solutions for speed and accuracy. Then we will need to take a view on operational viability and how quickly it could be rolled out”.
She said:
“It is a long process, and it has a cost attached to it”,
but went on to emphasise that
“accuracy … is the problem at the moment”.
If the Minister could update the Committee, that would be very welcome. The point in general is not only about sentencing remarks. My honourable friend for Richmond Park has been pursuing the matter of transcripts. She realises that this is important not only with sentencing remarks but with full transcripts of trials—victims, if that is a word I can use, when there has been a not guilty finding, need help to understand what has happened. As the noble Lord has said, access after the event, to go back and look to see what was said, is very important. None of us relies on our memory—we all look at Hansard, for instance. The publication within two sitting days may be overambitious, when I look at what the Lord Chancellor said—but then she has perhaps not met our Hansard writers, who do it in much less than two days.
Baroness Porter of Fulwood (Con)
My Lords, I welcome Amendment 148A. The Bill will shape the ecosystems of support that underpin and surround our entire justice system. A recurring theme through Second Reading and Committee so far has been the question of resourcing. While the focus of these discussions has been largely around the Probation Service itself, we cannot ignore the 1,700 community and voluntary organisations that work in this area, both inside and outside prisons.
We know that there are many aspects where community and voluntary organisations excel. There are some dimensions, the evidence shows, where they provide better than private companies or the public sector. They build social capital, enable trust and often have an understanding of vital contextual points related to specific communities or issues. I am sure any of us who have spent any substantial time volunteering and working closely with people in very vulnerable situations understand this dynamic.
In general, this sector in the UK is facing challenges on many fronts. The rise in national insurance, corporate giving stalling and increasing overheads across the board, combined with growing demand, are all contributing to what the National Council for Voluntary Organisations refers to as the year of the “big squeeze”. Clinks’ State of the Sector 2024 report makes for sobering reading, and that is the situation as things stand. If the vision that sits behind the Bill is to stand any chance of success, not only do we need to find a way to support and shore up the existing voluntary and community sector but we need to prioritise expanding its capacity and growing it.
That is more straightforward than it sounds. There is a remarkable level of agreement across organisations such as the Charities Aid Foundation, the Centre for Social Justice, Clinks and the National Council for Voluntary Organisations, to name a few, about the kinds of policies that are needed. A lot of these are to do with processes: simplifying, contracting, commissioning locally and more collaboratively, introducing contract indexation and protecting local specialist funding. Others are about finding ways of attracting more private and corporate donations into the sector; for example, making changes to gift aid and introducing matched funding. Others, as the Lords Justice and Home Affairs Committee report Better Prisons: Less Crime highlighted, are practical points about how HMPPS and individual prisons can co-ordinate better with the third sector.
This amendment by itself is not an answer, but it is a prerequisite for bringing the level of transparency and accountability that is needed into this system. This provides a powerful opportunity, if used correctly. We need to understand in more detail the plan for addressing the impact of the Bill by requiring a formal report on its impact and on the capacity of the voluntary and community sector to meet any increased demand. This amendment will build accountability into the system.
If we fail to monitor the effects of this legislation on the very organisations that underpin rehabilitation and community safety, we risk creating new pressures in the system. By amending the Bill to provide for this assessment, the Government have the opportunity to send a clear signal here, demonstrating that they believe that policy should be informed by data and that the community and voluntary sector is a valued partner. This amendment would strengthen oversight, support the sector and ensure that the promises of the Bill are matched by the capacity of the community to deliver them.
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
My Lords, I thank the noble Lord and the noble and learned Lord for the opportunity to discuss these important issues. I appreciate that these amendments seek to improve transparency and public understanding of the criminal justice system, and this Government agree wholeheartedly on the importance of open justice. However, we do not consider that these amendments are necessary to achieve that aim.
I turn first to Amendment 84. I reassure noble Lords that the Government are taking action to increase the openness and transparency of the system. In certain cases of high public interest, sentencing remarks are already published online, and sentencing remarks can also be filmed by broadcasters, subject to the agreement of the judge. The sentencing of Thomas Cashman for the appalling murder of Olivia Pratt-Korbel was one such example. The Government have recently extended provision of free transcripts of sentencing remarks to victims of rape and other sexual offences whose cases are heard in the Crown Court, and it remains the case that bereaved families of victims of murder, manslaughter and fatal road offences can request judges’ sentencing remarks for free. We are also actively exploring opportunities offered by AI to reduce the costs of producing transcripts in future and to make transcripts across the system more accessible. But this amendment introducing this additional provision of court transcripts would place a significant financial burden on the courts and divert resources away from where they are needed most in the wider system.
The release of any court transcript requires judicial oversight to ensure accuracy and adherence to any reporting restrictions and to make sure that other public interest factors have been considered. This amendment would therefore have significant operational and resource implications for HMCTS and the judiciary. It would place extra demands on judicial capacity in the Crown Court and on HMCTS at a time when the system is under immense pressure, so while we agree entirely on the importance of transparency within the justice system, we cannot accept the amendment at this time. However, I reassure noble Lords that we will continue to consider this closely. In particular, I want to explore what opportunities AI presents to improve transcriptions and data. I am sure that noble Lords agree that the potential is there and that we need to find the best way to harness it. I will write to the noble Baroness, Lady Hamwee, on the point around data and accuracy.
I turn to Amendment 85. Again, we agree with the principle of improving transparency but not with the necessity of the amendment itself. This Government are committed to improving the collection and publication of data on foreign national offenders. The Ministry of Justice has already taken action to increase transparency on the data published. Notably, in July, for the first time the offender management statistics included a breakdown of foreign national offenders in prison by sex and offence group. We are also working closely with colleagues in the Home Office to establish earlier identification of foreign national offenders. Being able to verify the nationality of offenders ahead of sentencing will facilitate more timely removals and may also provide an opportunity for enhanced data collection. We will keep this under review as part of our ongoing work to strengthen the data collection and publication system that we inherited from the previous Government.
Implementation of these measures may require a new mechanism to verify the information provided, which must be cost effective and prevent placing additional pressure on operational staff. For this reason, we cannot accept a statutory duty to publish this information before the necessary infrastructure is in place to support it. Our measured approach will continue to support the return of more foreign national offenders while ensuring maximum transparency for the public.
I am grateful to the noble Lord and the noble and learned Lord for Amendment 148A concerning measuring the impact of the Bill on the voluntary and community sectors. I also thank the noble Baroness, Lady Porter of Fulwood, who has championed this subject during the Bill’s passage. She made a thoughtful and impassioned contribution at Second Reading and in today’s debate. The voluntary and community sector plays a vital role in developing and delivering services to people in our care. The sector supports HMPPS and the MoJ by bridging gaps and providing continuity that reduces reoffending and drives rehabilitation through targeted specialist support. Many of the services we provide would not be possible without the vital contribution of the voluntary sector, including charities such as Women in Prison, the St Giles Trust, PACT and many others. The Independent Sentencing Review made recommendations for where the third sector can be utilised to support the Probation Service and offenders on community sentences or on licence.
We already work closely with third-sector organisations to deliver better outcomes in the criminal justice system. For example, we work in partnership with the charity Clinks through the HMPPS and MoJ infrastructure grant to engage a network of around 1,500 organisations. In collaboration with Clinks, we have convened a series of roundtables with voluntary and community sector representatives and policy colleagues to explore the review’s recommendations and how the sector can make the greatest contribution to probation capacity.
I have carefully considered Amendment 148A. However, it will not be possible to fully understand the impact within 12 months, nor based just on data from the first six months of the Act being in force. Implementation of the Bill’s provisions will be phased over time and closely linked to the outcomes of the Leveson review and its implementation. In addition, the sector’s experience will be influenced by the introduction of new commissioned rehabilitative services contracts. Measuring the impact within such a short timeframe amid these overlapping and confounding factors would be highly complex. But again, I want to explore the opportunities that AI presents to collect and use better data in future. I can assure noble Lords that we will continue to work closely with the sector to ensure that it is considered and utilised in the implementation of this Bill.
Lord Keen of Elie (Con)
My Lords, I am grateful to all noble Lords who have spoken on this group. Their contributions have underscored the wide recognition across this Committee that transparency, accountability and evidence must underpin any credible approach to sentencing reform. These amendments do not seek to frustrate the Bill in any way; they seek to ensure that its objectives can be properly understood, monitored and delivered. Regarding Amendment 84, we have heard throughout this debate the importance of public confidence in the criminal justice system, and confidence cannot exist without visibility.
On Amendment 85, I once again make the simple point that you cannot manage what you do not measure. With respect to Amendment 148A, I too acknowledge the contribution made by the noble Baroness, Lady Porter; her thoughtful and insightful contribution reflected her long-standing experience and interest in this issue. At this time, I withdraw the amendment, but I give notice to the Minister that we will return to this issue at a later point in the process of the Bill.