Sentencing Bill

Lord Keen of Elie Excerpts

Monday 1st December 2025 Lords Chamber

I suggest that the noble and learned Lords, Lord Thomas and Lord Burnett, should be congratulated on introducing the compromise—not a compromise that I would go for but a compromise that would work—and if the clause is to stand, their wise approach should be heeded.

[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.

--- Later in debate ---

Moved by

[Lord Keen of Elie]

84: After Clause 19, insert the following new Clause—
“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.

--- Later in debate ---

[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.

Amendment 84 withdrawn.