Sentencing Guidelines (Pre-sentence Reports) Bill

Debate between Baroness Hamwee and Lord Beith

Report stage
Wednesday 4th June 2025 Lords Chamber

[Lord Beith (LD)]

My Lords, I agree very much with what the noble Viscount has said. His amendment, like others in this group, would give some helpful clarity to an extremely unclear piece of legislation. I think we are about to make bad law, because the Government have been unable or unwilling to define what “personal characteristics” are. We do not know what will fall within the range of prohibitions placed on the Sentencing Council. It will be left with an undefined scope and an undefined extent. Race, religion and belief, or cultural background, whatever that is, are listed, but after that it becomes a matter for speculation as to what might be included.

The Government insist that the list that appears in the Bill is non-exhaustive. In a letter sent to several of us, the Minister states, but without citing any authority, that “personal characteristics” include sex, gender identity, age, physical disability and pregnancy or “other similar conditions”. What is similar to pregnancy? I have been puzzling over that for some time and I am not quite sure.

The Minister did not mention autism, a background of local authority care or experience of sexual abuse, although in the latter case the Government said, in a different letter, that it is not a personal characteristic to have been a victim, perhaps a repeated victim, of sexual abuse. What is included in the list appears to be in the minds of Ministers, or whatever may appear in the minds of Ministers at some later date, leaving the Sentencing Council and, indirectly, judges and magistrates in some confusion as to what the Government intended.

I think and hope that, in making decisions about whether to call for a pre-sentence report, courts will not be influenced by this whole row—it would be very unfortunate if they were—but there is just a slight risk that this may become an area in which courts start to think, “This is a bit political, we’d better not go there”. That must not happen. The still-existing freedom of courts to decide to have a pre-sentence report is not directly affected by the Bill. My worry is that it might have an indirect effect.

Law can have consequences. I foresee the day when a non-exhaustive list of prohibitions will appear in some other Bill on some other subject. What will happen then? We will be told that non-exhaustive lists of prohibited actions are an established practice and appeared in the Sentencing Guidelines (Pre-sentence Reports) Act 2025. It will become a precedent that will certainly get used on some future occasion, and I think that is a dangerous thing to be happening.

My noble friend’s Amendment 2 restores the Sentencing Council’s freedom, if there is good cause, to issue guidelines that refer to personal characteristics. I urge support for it and, if he presses it to a vote, which I hope he will, he will certainly have my vote and, I hope, those of others who are concerned to protect the ability of the Sentencing Council, a body of some distinction, to do its job in the light of sensible judgment, following discussion with the Government wherever that is necessary or appropriate.

I turn finally to Amendment 9, which is in my name. The Minister has asserted that pregnancy is a personal characteristic, falling within the restrictions imposed by Section 2 of the Bill. But there is case law accepting pregnancy as a reason to order a pre-sentence report, in R v Thompson 2024. Modern slavery was similarly referred to as grounds for a pre-sentencing report in R v Kurmekaj 2024, and being a young offender is dealt with in R v Meanley 2022.

It is difficult to accept that the case law should be overridden by the Bill if it becomes an Act. The Minister has asserted that it is overridden, asserting in his letter that the Bill would make

“such direction about obtaining PSRs across existing guidelines unlawful”.

“Unlawful” is the word used in the Minister’s letter. Nevertheless, he claimed that

“it will not prevent guidelines from reminding sentencers in more general terms that PSRs will be necessary”

when

“an assessment of the offender’s personal circumstances would be beneficial”.

So where does that leave us? It leaves us in a tangle of legal uncertainty, and there is no excuse for that. I suggest that the Minister should accept my amendment, leaving the Sentencing Council free to issue guidelines that reflect and draw attention to well-established case law on the value and importance of pre-sentence reports in cases of the kinds I referred to.

[Baroness Hamwee (LD)]

My Lords, I confess that I am still struggling to understand this Bill, despite it having only one clause. The Minister was as helpful as he could be in Committee, and we all know his pedigree, but he has been dealt a very difficult hand. I think this is a bad Bill and, as my noble friend has just said, it is going to be bad law. We all know the political background to it. On Monday, at Second Reading of the Border Security, Asylum and Immigration Bill, one noble Lord used the delicate word, which I will repeat, “presentational”. I think that is quite a good synonym. The Constitution Committee has commented on the Bill, picking up very much the points that the noble Viscount and my noble friend made and the response from the Ministry of Justice has not, I think, taken us any further.

In Committee, I asked what was meant by the words “framed by reference to”. I still do not really understand them. This has caused me to table Amendment 3, although I realise it is a bit risky pursuing this, because we may be told from the Dispatch Box that the Bill is more restrictive than we would actually want to see, and it is arguable that as it stands, the guidelines can refer to characteristics depending on the law which is being shaped.

The legislation should be clear and certain—points which were made very clearly by the Constitution Committee—especially in this sort of situation. It is curious that the Bill seeks to pit the state against a body such as the Sentencing Council.

Illegal Migration Bill

Debate between Baroness Hamwee and Lord Beith

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I moved Amendment 139A. The right reverend Prelate and I have often had our names paired on amendments on these issues. The story from the noble Lord, Lord Ponsonby, about Home Office officials sitting in court to see what they can pick up was truly shocking, whatever other conclusions one might draw about it.

I am unclear why it is necessary to apply the restrictions about sharing data, automatically or otherwise, when the subject is already detained, but I come back to my principal point—sadly, it is not the first time we have made it from these Benches—that we thought that the effective immigration control exemption in the Data Protection Act, and so much now comes within that, was far too wide and had dangers inherent in it. The examples given by the right reverend Prelate in the field of domestic abuse bear this out.

We have heard a lot about the Government wanting co-operation from victims with regard to the investigation and prosecution of traffickers and smugglers. It does not seem to me that not agreeing to a firewall is the best way to go about getting that co-operation.

[The Deputy Chairman of Committees (Lord Beith) (LD)]

Is the noble Baroness withdrawing her amendment?

[Baroness Hamwee (LD)]

I was just about to. I beg leave to withdraw the amendment.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Debate between Baroness Hamwee and Lord Beith

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Tuesday 6th October 2020 Lords Chamber

[Lord Beith (LD)]

My Lords, my name is attached to the noble Lord’s Amendments 32 and 33 because they address two long-standing concerns of the Constitution Committee. The first is the broad and unjustified use of Henry VIII powers. The second is the confusing and counterproductive complexity of immigration law, which we believe needs to be clear and consolidated. That is why I support these amendments. I welcome the fact that the Government have addressed the first of these issues by tabling Amendment 32A, which makes more specific the scope of the power, confining it, as the noble Lord, Lord Pannick, has said, to Articles 2 to 10 of the workers regulations.

I would have welcomed a similar willingness to move on the issues that the Constitution Committee has raised in relation to paragraph 6 of Schedule 1, which nullifies EU-derived rights and remedies. The noble Lord, Lord Pannick, has quoted some parts of paragraph 6 and they are really extraordinary: rights should disappear because

“they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, any provision made by or under the Immigration Acts”

and, even stranger, because they are

“otherwise capable of affecting the exercise of functions in connection with immigration.”

I can think of all sorts of functions that people might consider were “in connection” with immigration, but we really need laws that are clearer than that.

Adrian Berry, chair of the Immigration Law Practitioners’ Association, said when he gave evidence to us:

“How is the ordinary person, never mind the legislator, to know whether the law is good or not in a particular area if you draft like that?”


I know that parliamentary draftsmen have had a pretty heavy diet of work lately, not least with Covid-19 orders, but it is possible to do better than that, unless the instructions given to them were so unspecific as to leave things so wide open that they had to draft the legislation in that extraordinary way.

Paragraph 69 of the Explanatory Notes tries to explain why this is necessary, but fails to do so—at least I find it completely unpersuasive. I did learn a little more about Chen carers than I knew previously, which was almost nothing. I am sure that my noble friend Lady Hamwee thinks of little else at some stages of the Bill than the quite obscure provision that resulted from the Chen case before the European Court of Justice. However, I certainly found the argument unpersuasive.

The committee says:

“The statute book requires clarity rather than obscurity and provisions such as these threaten to frustrate essential ingredients of the rule of law.”


An essential ingredient of the rule of law is that it is on record and visible and capable of being understood, particularly by those who practice it professionally, but preferably by a wider range of people as well, including those who may face either a penalty or, in this case, the inability to have a right to which they believe they are entitled as a consequence of wording as vague as this.

There is still time to improve this: the Minister could come back at Third Reading with an amendment that makes clear the purpose of this paragraph, and I am only sorry that she has not done so thus far.

[Baroness Hamwee (LD)]

My Lords, the explanation of the noble Lord, Lord Pannick, of how unsatisfactory the Bill is, particularly Schedule 1, was a model of clarity, unlike the schedule. He has also left us, from the earlier stage, with a vision of straining to read the Emperor Caligula’s laws, and that will stay with me, possibly longer than Schedule 1.

The comments of the Constitution Committee on the complexity of immigration law being a serious threat to the ability of lawyers and judges to apply it consistently were, in a way, reassuring to those of us who struggle with it, but otherwise not reassuring at all, as the noble Lord and my noble friend made clear in their speeches. I am very sorry to disappoint my noble friend by not wandering off into comments on case law. I support the amendment.

Investigatory Powers Bill

Debate between Baroness Hamwee and Lord Beith

Report: 2nd sitting (Hansard - part one): House of Lords
Monday 17th October 2016 Lords Chamber

[Lord Beith (LD)]

My Lords, I applaud any attempt to make the definitions precise but there comes a point when there is a negative consequence. I am slightly worried that the wording of the amendment—certainly as drafted—could inhibit the activities of law enforcement in establishing a pattern in the development of criminal behaviour and activity, particularly in the area of organised crime, if it were to be interpreted as strictly as its wording invites. Although the intention of the amendment is good, I am not yet persuaded that it can safely be included without an undesirable inhibition of a particularly important area of activity at the moment—namely, establishing whether groups with well-suspected criminal intent might be planning something worse.

[Baroness Hamwee (LD)]

My Lords, the noble Lord, Lord Rosser, has set perhaps the hardest task for the Minister today in asking him to comment on what was perhaps not a coded speech but simply one inviting speculation.

Turning to the amendment itself, as on the first day of Report we are sympathetic to where the noble Baroness is coming from. Indeed, I think we had an amendment on “reasonable suspicion” at an earlier stage. However, perhaps again I should phrase what I have to say as a request for confirmation, as my noble friend Lord Paddick did last week. Reasonable suspicion is encompassed by the necessity and proportionality test. The way the noble Baroness has expressed it is that there is a moderate-sized hurdle to be got over and then a higher hurdle to be surmounted, by having “reasonable suspicion” and then the necessity and proportionality test. To keep up the athletic metaphor, you will not get over the higher hurdle even if you get over the lower one, so it seems to us that you might as well just have the higher hurdle. Perhaps we can be given some more assurances about how the different criteria will bite.

Investigatory Powers Bill

Debate between Baroness Hamwee and Lord Beith

Monday 5th September 2016 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, on behalf of my noble friend Lord Paddick and myself, I shall speak to this amendment and to Amendment 194DA.

The first amendment provides that the Secretary of State should provide “funds to cover” the hiring of staff, the arrangement of facilities and so on for the judicial commissioners. The amendment simply probes whether the appointment of staff—indeed, the hiring and firing of staff—is a matter for the Secretary of State or for the IPC. I would be grateful if the Minister will help me on how—in the real world, which has just been referred to—that will be dealt with.

Amendment 194DA provides for a new clause—although it is not so very new—to create a role in this for the president of the Investigatory Powers Tribunal. RIPA provides for the Secretary of State to pay members and expenses—remuneration, allowances and so on—with the approval of the Treasury. I have not sought to delete the Treasury’s control—I am realistic to that extent—but wanted to add a role for the president. Should expenses, for example, be a matter for the Secretary of State? I beg to move.

[Lord Beith (LD)]

My Lords, it is quite important that we get this right. As I think the noble Lord, Lord Murphy, will remember, one of the commissioners under the previous arrangements was found by the ISC to have been hopelessly inadequately provided with staff, to such an extent that there was a huge build-up of correspondence. That was some years ago and it took some effort by Members of our party as well as of his to ensure that that was quickly remedied.

I also have experience as a constituency Member of Parliament in dealing with an employee issue, the merits of which I will certainly not go into but which was not helped by its being unclear who the employer was. I am talking about somebody who was engaged in the office of one of the commissioners. So I am grateful to my noble friend for trying to make sure that we get this bit right.

Investigatory Powers Bill

Debate between Baroness Hamwee and Lord Beith

Tuesday 19th July 2016 Lords Chamber

[Lord Beith]

My Lords, I am very glad the noble Baroness has tabled this amendment because it enables us to clarify the extension of the things we were discussing on telephone interception into this area, which the Government are now seeking to ensure is covered in other respects and that the same principles should apply. Having said that, I am inclined to agree with the noble Lord, Lord Murphy, that what is now in the Bill is probably about the best set of safeguards that we could reasonably construct from the very important principle—I agree with the noble Baroness on this—that we should protect the ability of constituents and whistleblowers to contact elected Members to raise matters of concern. They may be matters which affect the very organisations, whether it is the intelligence services or the police, that might seek the power to initiate interception.

The noble Baroness mentioned the Wilson doctrine, which came up earlier. That adds no clarity whatever to the situation but simply obscures it. It is even further complicated now by the fact that the last Prime Minister to make a Statement on the subject is no longer the Prime Minister. It is not even clear that his successor will consider herself bound in any way by what Mr Cameron said on the subject. As I think we teased out in the previous discussion, the Wilson doctrine does not really mean anything now. There is now a statutory basis for considering how to deal with a situation where there are reasonable grounds to believe that a Member of a legislature is involved in very serious crime or associated with terrorism. That is the procedure set out in the clause that the amendment addresses.

That there should be a bizarre principle now that the Government generally have a policy of not using these sorts of powers but will come along to Parliament some day and say, “We’ve changed our minds and now we want to use these powers very widely indeed” just does not make any sense at all. Since no Prime Minister has ever come to the House to satisfy the requirements of the Wilson doctrine—that if government policy changes, you should make such a Statement—the whole thing has become absurd. We should give it a decent burial and satisfy ourselves that the provisions we put in place for governing interceptions of any kind of the communications of a legislator are satisfactory. I am of the view that the clause we have now, following the various interventions that the noble Lord, Lord Murphy, described, is a good basis for doing so.

[Baroness Hamwee (LD)]

My Lords, I do not know whether the noble Baroness, Lady Jones, feels that she got an adequate response to her equivalent amendment the other day. I had a look at the Official Report this morning and I thought that it was quite telegraphic—quite brief. So it is understandable that she would raise the matter again in this context. I see that she has expanded subsection (3)(d) with regard to the public interest. On the noble Baroness’s previous amendment on interception, my noble friend Lord Paddick made the point that if ever there was a need for political accountability regarding the target of a warrant, it is when that target is a parliamentarian. He acknowledged the tensions and dilemmas in all this.

I am a member of the Joint Committee on Human Rights, which, when it considered these issues before the Bill had its Report stage in the Commons, expressed concern about the separation of powers, which is what underlies this, at any rate as regards parliamentarians—the need to be able to communicate freely with constituents and others because of the distinction between the Executive and the legislature.

Perhaps I might say a word about government Amendment 173—although not to argue with it. It is about modifications and the Committee knows our concerns about those, but I accept the need to define “designated senior official”. But I wonder about the wording that this is for,

“the purposes of this section”.

Presumably it is also for the purposes of the modification and is case by case. I am not really sure about that but I can see the need for an audit trail. I think that the phrase “designated senior official” is used elsewhere, not only in this clause—I found it in Clause 112(7)—and not only as a senior official designated by a public authority. So I wonder whether there is a need to look at the definition throughout. Of course, the Bill is not really long enough as it is, so maybe we should have additional definitions collated in Clause 236. My principal point is whether there might be some confusion about using the phrase only for the one section.