Sentencing Bill

Lord Jackson of Peterborough Excerpts

Committee stage
Monday 1st December 2025 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, rehabilitative activities, activities designed to reduce reoffending—whatever we call them; I do not disagree with my noble friend that what we call them is important—and treatments are often provided by the third sector. A lot of what is provided is excellent, but it is not enough, and it is not consistent across the country. The third sector’s role was acknowledged by David Gauke in his review.

We hear success stories, for instance of a middle-aged woman whose alcoholism was treated after she had been convicted several times for relatively low-level offences. She ceased offending when the alcoholism was treated and was able to lead an ordered life. I think too of a young man who, time after time, failed to connect with his probation officers. Then he found one—or she found him—whom he trusted. That enabled him to take proper advantage of the support that was available. Those are two examples of people the Justice and Home Affairs Committee met before my noble friend joined it.

I know the Minister knows all this, and he knows much more than I do, but I tabled this amendment because regional disparities are substantial and funding needs are acute. A friend of mine refers to some of these organisations as having something that is almost similar to an eating disorder—they simply do not have enough. That is not a very good way of putting it, but they are so hampered by lack of funding. It must be very difficult to work for one of these organisations, knowing that you can never do enough. I do not advocate that all services should be provided by the state, but it is a very sorry position that we are so reliant on voluntary charitable organisations, which are struggling to keep going—not always successfully.

As to Amendment 139B, my noble friend Lord Marks will say more about reporting on reoffending, giving comparative details between offenders who have completed community and custodial sentences. I would be surprised if that is not available to the MoJ now. Because one wants to see sentences that work and maintain the trust of the public in the operation of the justice system—we are becoming like a stuck record in mentioning the public’s trust—the more information in the public domain, the better.

I think Amendment 93A from the noble Lord, Lord Jackson, is in a similar vein, though I do not come to the same conclusion about an automatic sunset of the Act. I beg to move.

[Lord Jackson of Peterborough (Con)]

My Lords, I will speak to the amendments in my name in this group. The Committee will be delighted to know that I do not intend to go into detail on Amendment 86 as I think it is quite straightforward and others may wish to discuss it, including my noble friends on the Front Bench, but I do intend to elucidate on my Amendments 93A and 127.

The point of this group is transparency in the criminal justice system. The second of my amendments, Amendment 93A, is about the efficacy of reforms to community services. I tabled the amendment, which, incidentally—it goes without saying—is a probing amendment, because it is important to test, over a period of time, the efficacy of the quite substantial and radical policy changes that these clauses give rise to. It is a probing amendment that challenges the Government to account for the success or otherwise of these proposals.

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

My Lords, I too am keen that we should, generally speaking, trust the public. But Amendment 86 requires

“all offenders convicted and sentenced in the Crown Court or Magistrates’ courts”

to have their

“country of birth … nationality … ethnicity … immigration status, and … the offence(s) for which they were sentenced”

recorded, published and laid before Parliament. That could encourage the drawing of entirely the wrong conclusions by the British public.

[Lord Jackson of Peterborough (Con)]

I seem to recollect that the noble Lord’s party supported, for instance, the Lammy Review, which looked at sentencing and led, by a circuitous route, to the decision of the Sentencing Council to fall out somewhat spectacularly with the former Lord Chancellor. His party has also supported the use of quite detailed empirical data around stop and search, which is looked at through the prism of race and ethnicity. What is so different? Is there a particular kind of empirical data that he does not think that the public should be made aware of, or is he just saying that this a poor amendment for the sake of it? It seems to me that the rationale is that you collect as much data as possible, you have an evidence-led approach to the policy and then you can design the legislation in the appropriate way.

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

I entirely agree with the noble Lord and the noble Baroness about the collection of data. What I am concerned about is the mandatory publication of all data, which risks being misused.

The noble Lord is quite right to suggest that my party supported Lammy. Indeed, I spent some time in this Chamber in debates on the sentencing guidelines Bill reminding the House of the Lammy Review on the inequality of outcomes based on ethnicity. That is quite different from saying that every single offence needs to be reported on and published, which can lead to unfortunate reporting.

Turning to Amendment 93B in the name of the noble Baroness, Lady Neville-Rolfe, like the noble Viscount, Lord Hogg, not only did I agree with almost every word she said, but I agreed with it profoundly in the sense of the benefits of participation in education, training and purposeful activity. I just have some concern about the use of the word “mandatory”.

In principle, all those things are sensible and beneficial for all the reasons that the noble Baroness gave. However, as we in this House know, many prisoners are struggling with addiction and mental health issues and some with problems of aging and illness. For those prisoners, the prospect of education, training, work and purposeful activity may be nugatory. I worry about too much use of “mandatory” in these contexts without consideration of all the effects. What is important, as it was in the last group when we considered probation, is flexibility and a personal approach so that offenders are dealt with having regard to their personal needs. That is an additional point to the one made by the noble Viscount, Lord Hogg, who talked about the availability of particular training opportunities—which were important as well.

On Amendment 127, I say yes to transparency of the Parole Board. Generally, the proceedings of the Parole Board should be public, should be heard and should be considered. Reporting of them is a good thing. I agree with the noble Baroness, Lady Fox, that there may be material that needs to be private. In these hearings, some discretion must be applied to enable the Parole Board to receive and take note of material that should not necessarily be made public. The hearing should make that decision. However, in general, the principle of transparency is one with which I and my party agree.

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[Lord Sandhurst (Con)]

It is only one of the factors included. I did not mean to select just that. I was using it as shorthand for what is in my noble friend Lord Jackson’s amendment, which includes country of birth—which I suggest is relevant—and nationality.

[Lord Jackson of Peterborough (Con)]

I beg the indulgence of the Committee to specifically answer the reasonable point made by the noble Lord, Lord Bach. There is and has been for many years significant concern about the overpolicing of some communities. That has given rise to a number of key initiatives, including the police action plan, which the noble Lord with his great expertise is well aware of. That is based on the collection and collation of data around ethnicity. You cannot have one without the other, I am afraid.

Therefore, to keep the faith and trust that taxpayers have in the criminal justice system, one has to collect as much data as possible. If one collects it to prevent overpolicing, one should also collect it for other reasons, so that you have a clear, transparent system.

[Lord Sandhurst (Con)]

There is quite a lot to cover in this group. My noble friend has made the point. We never suffer from having too much information. If it is collected in bits and pieces, there is the danger of distortion.

The report by the noble Baroness, Lady Casey, exposed a decade-long data collapse and made it clear that this should not carry on any longer. This is an area in which we have dragged our feet for too long. The majority of OECD countries have mandatory reporting statutes. The fact is that the United Kingdom does not do the same, and that is no help to anyone other than the offenders.

We need to do something to implement the recommendations from the noble Baroness, Lady Casey. The amendment would give forces the necessary data to record, analyse and respond to different dynamics in different communities. Publishing data would prove to the public that the Government are not concerned with accusations of bigotry but focused on outcomes. These are clear benefits in this amendment for noble Lords’ efforts to tackle crime and reduce reoffending. I hope the Minister has considered it carefully.

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[Baroness Hamwee (LD)]

My Lords, I too am intrigued and concerned as to how these conditions will be monitored and enforced. I did not support the amendments that are aimed at the same question in the previous group, because I do not think we should make, for instance, the licensee of a pub or the operator of a sports ground the enforcer of conditions. Many of us have been critical enough, in the area of immigration, about making landlords and so on enforcers of government legislation. But I think there is still a lot to explore in this.

I said that I assumed the answer was going to be electronic monitoring, but how is that to be done, unless we are requiring the offender to be confined to a particular place—to home, for instance? They are not as strict as that; they exclude certain events. So does somebody need to know where events—an Oasis concert, a Premier League match or a fringe theatre with a tiny capacity—are taking place? How is this actually checked? The Minister said that the probation officer will get the data from a tag. I do not know enough about how these work to know whether the probation officer can easily find out whether somebody has attended a Sheffield United match. How is that actually done in practice on a day-to-day basis? Does the probation officer have the GPS co-ordinates for everything that might be an issue? It would be helpful if we could understand more about this.

I am concerned about live facial recognition—if it is being used; I do not know whether it will be. It works on the basis of a watch list, which is created for a particular occasion but then, as I understand it, will be deleted; it is not something which would go on for several months. I had thought that live facial recognition was only for the period of surveillance. I am asking for much more briefing on this, which we would then want to be in the public domain, but we need to understand it first.

My noble friend Lord Marks will be speaking to our Amendment 106, but I cannot overemphasise the importance of this amendment, or something like it. The objective is reducing reoffending, so one must enable employment, education, rehabilitation programmes and so on. We know from the experience of other orders that, for instance, the requirement to report to a police station can be imposed with absolutely no regard to the demands on an individual, who is then forced to take a day off work. I am interested to hear how enforcement works with the support for the offender, which is implicit in the activities.

My noble friend Lord Foster of Bath, in making the overarching point about necessity and proportionality, has hit on what is, to my mind, a very important point. I wish I had thought of it, but I support him in this. I beg to move Amendment 60.

[Lord Jackson of Peterborough (Con)]

My Lords, I will speak to Amendments 61, 66, 102 and 104, standing in my name. I find myself in the unusual position of broadly agreeing with the noble Baroness, Lady Hamwee, on Amendment 60.

This is an example of what I suppose could be called legislative drag, where time has elapsed between the publication of legislation—in this case, Second Reading in the Commons was at the beginning of September—and real-life events today. I want to talk about the broader context of how these proposals and policies may have an impact, in particular on the hospitality sector.

In principle, we do not oppose the creation of new tools to protect the public or manage offenders, but their success, as other noble Lords have said, depends significantly on enforceability. Clauses 14 and 15 lack any operational detail on how the bans on pub or event attendance organisations will be implemented or enforced, making them currently unworkable in practice. It is unrealistic and unfair to expect pubs, bars, off-licences and event venues to police court-ordered bans without a clear enforcement structure. The hospitality sector is already in severe financial distress, and I will return to that shortly. If enforcement is not intended to fall on venues, the Government must explain how probation and policing will manage compliance, given existing resources and the staffing crises that we discussed on day one of Committee.

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[Lord Foster of Bath (LD)]

My Lords, on 20 September there were 26,647 people subject to electronic monitoring, with various types of tags and for a range of different purposes. It has been estimated that this Bill will increase the number of people being tagged by an additional 20,000. In other words, it will more or less double the number of people being tagged.

In our deliberations, we have already heard the Minister make it clear that his understanding is that the vast majority of people who leave prison will be among those 20,000 people. Although it is true that there is guidance which says:

“Offenders released from prison will enter a period of ‘intensive supervision’ tailored to their risk and the type of crime”,


it acknowledges that probation officers will be allowed some discretion as to whether all prisoners leaving will be tagged. My real concern is that probation officers who have heard the Minister say that the vast majority of prisoners will be tagged are going to end up tagging the vast majority of prisoners. That is why I have tabled Amendment 110ZA, the purpose of which is to require

“the relevant authority, when considering whether to include an electronic monitoring requirement as part of a relevant order, to have regard to whether the requirement is necessary to ensure compliance with the order and whether the requirement is proportionate considering the individual’s circumstances”.

The Lords Justice and Home Affairs Committee did an investigation into tagging as it currently stands and looked ahead at what might be coming down the track. We heard a number of worrying bits of evidence. For instance, we heard about a 77 year-old woman recalled to prison simply because there was not a tag small enough to fit her. We heard from many people about the stigma attached while they are wearing a tag, even to the point that people who see the tag—which is pretty obvious in many cases—are frightened and believe they are dangerous. None of this helps them re-establish themselves in their local communities.

We also discovered a number of serious ethical issues. For instance, we found evidence that black people are almost twice as likely to be subjected to electronic monitoring as their white counterparts. Even the Home Office acknowledged this in a 2023 equality impact assessment which acknowledged that GPS tagging may disproportionately affect some nationalities. The MoJ told our committee that it, too, accepted that electronic monitoring might not be suitable for all individuals and addressed issues such as work, childcare commitments and so on.

There are also other measures that are rarely taken into account. One very good example is a prisoner I spoke to who had gone into prison because of his gambling addiction—he had stolen money and gone into prison as a result—and then on release had a curfew order. When he said he wanted to go to a meeting at Gamblers Anonymous, he was told he could not because that took place in the evening when the curfew applied. That seems fairly nonsensical to me.

We concluded as a committee that the MoJ, alongside the judiciary and the Probation Service, should conduct regular reviews to ensure electronic monitoring is being used proportionately across all groups, as well as appropriately among vulnerable groups, in which we highlighted women in particular. In tabling this amendment, I wanted to draw attention to the committee’s concern about the blanket assumption that the vast majority of prisoners would be tagged.

We think this is really important, as the noble Baroness, Lady Prashar, has said. We will also hear similar arguments from the noble and learned Lord, Lord Keen, who has an amendment on this issue in the next group. In group 7, the noble Lord, Lord Bach, will raise the important issue of allowing offenders to have a say in this so that they can point out the impact that a tag of one sort or another may have on their lives—not being able to go to work, childcare issues or whatever. My noble friend on the Front Bench has amendments later on whether driving bans and exclusion zones could impact somebody’s ability to reduce reoffending.

This is simply an opportunity for the Minister to explain that he does not really believe that the vast majority of prisoners will be tagged and that probation officers, with the expertise which he points out they have, will be able to have due discretion over whether tagging or electronic monitoring is appropriate.

[Lord Jackson of Peterborough (Con)]

My Lords, I very briefly beg the indulgence of the Committee just to respond to my noble friend Lord Hailsham. It seems that he wishes to will the ends but not the means as regards my Amendments 61 and 66. I am rather surprised he did not know where every pub was in his constituency, because when I was in the other place I knew where every pub was in my constituency. That said, I say to him respectfully that it is perfectly reasonable in terms of data management to utilise the regulatory and the licensing regimes of local authorities to reach every pub and drinking establishment in a geographical area, and certainly within 20 miles. That is not something that is beyond the wit of the Probation Service to work with local authorities so to do.

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[Lord Timpson (Lab)]

My Lords, I thank the noble Baronesses, Lady Hamwee and Lady Prashar, and the noble Lords, Lord Marks, Lord Foster and Lord Jackson, for tabling these amendments.

Amendments 60, 61 and 66 refer to the enforcement of the new community requirements. I hope that the noble Baroness and noble Lord will be satisfied with a summary of the answer I gave in the previous group: responsibility for enforcement sits with the Probation Service, which has a range of options available to respond to non-compliance. This includes returning the offender to court, where they may face further penalties. This can include being sent to custody.

The noble Baroness asked how this works in practice, and I hope I can assist. Where electronic monitoring is imposed, the electronic monitoring service provider will receive an automatic breach notification if the offender breaches a licence condition predetermined by a court or probation officer. They will then provide information on the breach to the individual’s probation officer by 10 o’clock the following morning, for them then to take the appropriate action. If the noble Baroness would like further clarification and to speak to the experts whom I work alongside, I would be very happy to arrange that.

Amendments 102 and 104, tabled by the noble Lord, Lord Jackson, concern the enforcement of new licence conditions. As with the new community order requirements, the enforcement of licence conditions will mirror current practice. Where it is supervising offenders, the Probation Service will monitor offenders’ behaviour and any potential breach of licence conditions. It will have available to it a suite of options to respond to the breaches, including issuing a warning and increasing supervision; where needed, it also includes recall to custody.

Again, I hope that an example will assist your Lordships. Lucy has recently been released from prison after serving a custodial sentence after seriously assaulting someone in a pub. Her licence condition includes a ban on entering any drinking establishment. After several weeks, Lucy admits to her probation officer that she has frequently been going to pubs and clubs. Even though she has not been arrested, her probation officer decides that more intensive supervision is needed to manage her risk, and puts this in place.

As with community orders, where an offender is on licence, there is no expectation for businesses or venues to manage these conditions. As the noble Viscount, Lord Hailsham, rightly pointed out, imagine a probation officer, already under pressure, having to notify every pub, bar and venue within 20 miles that certain offenders cannot go there. Imagine businesses having to store securely, monitor and update this information and, by implication, having to be responsible for enforcing these conditions. This is not for venues or people in the community to manage, and it will not help offenders integrate back into their communities. The Probation Service will continue its management and supervision of these offenders; it is best placed to respond to any breaches, including recalling offenders to prison if necessary.

However, we must be clear: we cannot monitor every offender in every moment of every day, and nor should we. Complying with licence conditions is an important way in which offenders can show a reduction in their risk as they reintegrate into their communities. It is how they can rebuild the trust they have lost by committing crimes. The punishment correlates to offending behaviour and the decision of the sentencer who takes into account the nature of the offence.

I hope that this reassures noble Lords and noble Baronesses that these measures will provide our Probation Service with a full suite of options to support it in managing offenders in the community—a task it is best equipped to do. Of course, we are also supporting the Probation Service with more funding, more recruitment and better tools to help it do what it does best: keeping the public safe. We therefore believe that these amendments are unnecessary, and I urge noble Lords to withdraw or not press them.

[Lord Jackson of Peterborough (Con)]

With all due respect to the Minister, that is not a great example, because the example he gives is that Lucy has volunteered the information that she is in breach of her licence conditions. Given that the licence conditions are a de facto replacement for potential custodial centres, had she not told the probation officer, she would still have been in breach of the licence conditions as she was still going to the pub. I do not really think that that is a great example, with all due respect to the Minister.

[Lord Timpson (Lab)]

I am happy to provide further examples if that would be helpful but it may be that the tag, if Lucy had had one on, would have been used by the monitoring team to identify where she had or had not been.

I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Marks, for Amendment 106, which would allow for exemptions to restriction zone conditions. I am proud to be a Minister in the Government who introduced this measure. These zones will pin certain offenders down to a specific geographical area to ensure that victims can move freely everywhere else. I must pay tribute to those who campaigned tirelessly for this crucial change, including Diana Parkes and Hetti Barkworth-Nanton.

I hope that it will help your Lordships if I explain in a little more detail how the process of drawing a restriction zone will work. Where a restriction zone is deemed necessary and proportionate to manage risk, probation officers will conduct a detailed risk assessment. They will work closely with victim liaison officers, to ensure that victims have been given the chance to make representations where appropriate, but they must also ensure that offenders can access all necessary services, including employment, with consideration of public protection and risk. They must not be a barrier to employment or prevent rehabilitation; as someone who has championed the employment of ex-offenders for years, noble Lords will know that this is the last thing I would want to happen.

On a recent visit to the Serco office in Warrington, I saw at first hand how exclusion zones are designed. I saw the detailed consideration and care that is given when developing them; I will ensure that the same level of attention is given to restriction zones when those are being drawn, with due consideration given to the needs of both the victim and the offender. Let us be clear: these considerations are inextricably linked. Supporting offenders to rehabilitate and stopping the cycling of reoffending are vital parts of ensuring that restriction zones protect victims. Restriction zones, like all restrictive measures, must accommodate rehabilitative aims, such as employment; that way, we will better protect not just a single victim but all victims.

Amendment 101A from the noble Baroness, Lady Prashar, would give the Parole Board oversight of restriction zones. Although I thank the noble Baroness for raising this matter, my firm view is that, as I have set out throughout this speech, the Probation Service is best placed to monitor and request licence conditions; and that the judiciary is best placed to hand out orders.

The Parole Board is best placed to develop risk management plans on release for indeterminate sentence offenders and more serious determinate sentence offenders whose release it directs. It is not for it to do so in cases where offenders are subject to automatic release. If an offender is released automatically without any involvement of the Parole Board, it would be inappropriate for the board then to be asked to approve a restriction zone for an offender whose release it did not direct; it would have no knowledge of the individual and their case. As with current provisions, it is right that the Probation Service will manage the licence for these cases. It is the one who know the offender and the risk they pose best.

I thank the noble Lord, Lord Foster, for his Amendment 110ZA. I agree that it is important to ensure that electronic monitoring is imposed where it is proportionate and necessary to do so. When an electronic monitoring condition is being considered following an individual’s release from custody, the Probation Service will carry out an extensive assessment of that individual’s circumstances to ensure that electronic monitoring is used appropriately as part of its wider supervision. Conducting these assessments via the professional judgment of our Probation Service remains a core principle to ensuring that electronic monitoring is used only where it is proportionate and necessary. I have full confidence in the checks and decisions taken by the Probation Service, and I have confidence in the technology that is used to enforce any electronic monitoring requirement. I can assure the noble Lord that the electronic monitoring suitability checks currently in place and carried out by the Probation Service are robust; they ensure that the imposition of electronic monitoring will not result in harm to victims or perpetrators.

We are confident that probation officers will continue to impose electronic monitoring where it is proportionate and necessary to do so. I urge the noble Baroness to withdraw her amendment.

Sentencing Bill

Lord Jackson of Peterborough Excerpts

Committee stage
Monday 1st December 2025 Lords Chamber

Moved by

[Lord Jackson of Peterborough]

80: Before Clause 18, insert the following new Clause—
“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.

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[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.

Amendment 80 withdrawn.

Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Jackson of Peterborough Excerpts

2nd reading
Wednesday 7th May 2025 Lords Chamber

[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.

Courts: Backlogs

Lord Jackson of Peterborough Excerpts

Wednesday 15th January 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

The noble and learned Lord makes a very fair point. It is regrettable that the numbers are so high and are increasing—that is the underlying problem with which we are grappling within the Ministry of Justice. It is interesting that in the family court system we are back down to the pre-Covid numbers; that is good, and we are trying to bear down on that further. Nevertheless, the noble and learned Lord makes a very good point and I am sure that Sir Brian Leveson will address these points.

[Lord Jackson of Peterborough (Con)]

My Lords, the Minister will be aware of considerable concerns articulated by the Magistrates’ Association, among others, on the single justice procedure and the impact on vulnerable people, such as those with dementia or cancer, who have been brought to court. As he knows, that system is a magistrate with a lay expert supporting him. Will those issues, which are long standing since the establishment of the single justice procedure in 2015, be part of the ongoing review, as articulated by his right honourable friend Heidi Alexander two months ago?

[Lord Ponsonby of Shulbrede (Lab)]

I have sat as a single justice on certain types of cases. I understand that there are concerns about the single justice procedure, but I am not sure of the answer to the noble Lord’s question about whether it is part of Sir Brian’s review. I will write to him on that question.

Sentencing Review and Prison Capacity

Lord Jackson of Peterborough Excerpts

Wednesday 23rd October 2024 Lords Chamber

[Lord Timpson (Lab)]

I thank my noble friend. Like him, I am pleased that David Gauke has agreed to chair this review panel. I have worked closely with him—he was one of my trustees at the Prison Reform Trust—so I know not just how capable he is but how enthusiastic he is for prison reform. We will shortly announce the rest of the panel and I am sure my noble friend will welcome them as enthusiastically.

I agree with my noble friend about community sentences for adults who would otherwise have short-term sentences. I have been in prisons for 22 years and I have seen too many people go in and come out no different. We need to use the opportunity when they are in prison to overcome their mental health and addiction problems. When they leave, they need somewhere to live and, hopefully, a job. It is much easier to do a lot of that—when the risks are right—when someone is in the community, not in prison.

[Lord Jackson of Peterborough (Con)]

My Lords, I am old enough to remember the promise, under the last Labour Government, to build Titan prisons with 7,500 places—that never happened. Notwithstanding that, the Government are laudably pursuing a policy of tackling violence against women and girls. With that in mind, what specific policies are in place to protect the interests of victims of prisoners hitherto convicted of domestic abuse and sexual assault, who may be released?

[Lord Timpson (Lab)]

The noble Lord will be pleased to know that a victims’ representative will be appointed to the panel. That is important because the voices of victims need to be heard and we will be announcing the appointment soon.

It is a very difficult situation for victims, especially with the recent releases. Often, they expected someone to be released but it happened a few days or weeks early. I believe that the victim contact scheme is important and works very well. We need to make sure that victims engage with it, where appropriate, because they do not in all cases. The latest SDS40 releases were far better managed. We had an eight-week lead-in time, which is not perfect but is better than the earlier ECSL scheme, which was pretty chaotic. It is important that this review considers the victims in every sentence and every line of the report.