Sentencing Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Monday 1st December 2025 Lords Chamber

It thus preserves a safety valve. In the very unlikely event that—despite the research, the publication of a draft, the wide general consultation, the express involvement of the Lord Chancellor, his representative at the council, and the involvement of the Justice Select Committee—the Sentencing Council persists in a guideline that both the Lord Chief Justice and Lord Chancellor think completely wrong-headed, they can stop it.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I have added my name to the amendment in the name of my noble and learned friend Lord Burnett of Maldon and the proposition in the name of the noble Lord, Lord Jackson of Peterborough, that Clause 18 should not stand part of the Bill. I have done so because it is important that we see this as a constitutional issue.

It is necessary to go back to the achievement of the last Labour Government. Some still mourn the loss of the position of Lord Chancellor, and tonight is not a time to go into why there had to be change. It is important to go back to those times to see what the abolition of the office of Lord Chancellor entailed. In many respects, he—and it was a he, save in the case of Matilda the Queen—acted as the linchpin, a person who could bring together the judiciary, Parliament and the Executive. When that linchpin was taken away, it became necessary to look for a mechanism through which the three separate branches of the state, each with their own independent position, could act and work together reflecting what is inevitable in a state—their interdependence.

Out of the change that was made—which was somewhat hurried, if I recall correctly—there was born a series of mechanisms to balance the constitution. There was the concordat agreed, which dealt with problems such as the appointment of leadership judges, which was a joint and shared responsibility of the Lord Chancellor and the Lord Chief Justice. There was then the need to look again at the way the rule committees worked, because sometimes one forgets how vitally important it is that the rules work well, that Parliament has its input and that the judiciary and all those other interested parties have their input in producing rules of procedure that work. When you talk to people in other countries, you see what a huge advantage we have here. I mention these examples—and there are many other instances, which I will not weary your Lordships with at this hour of the night—that reflect what is, I feel, the spirit that was created by the previous Labour Government, which endured very well under the Conservative Government, but which is now being undermined by the particular changes being made here.

My noble and learned friend Lord Burnett and the noble Lord, Lord Jackson, have both explained how the Sentencing Council evolved, and I do not think it is necessary to go over that ground again. But it is necessary to say that the Sentencing Council was born in the spirit of needing to create the interdependent relationships between the three branches of government. The great thing about all the reforms that were made is that, by and large, they have worked. Of course, when you have three different bodies, there are bound to be hiccups, and there was a hiccup earlier this year. But one has to look and see what the achievement was and how it worked.

What the Sentencing Council did was to bring together the respective responsibilities. Parliament’s responsibility is setting the framework. Generally speaking, until we had the clauses that we discussed examples of earlier in Committee and which are of a completely unnecessary complexity, Parliament’s function normally was to set the broad brush of sentencing policy; unfortunately, it has gone away from that, much to everyone’s cost. The judiciary then pass the sentences, though they previously had, as the noble Lord, Lord Jackson, and my noble and learned friend Lord Burnett explained, issued guideline cases to achieve consistency. Then the Executive are involved because after all, they have to find the money to deal with the punishments, and they have to administer the system. So, it is necessary to have the input of all three if the sentencing framework is to be set by Parliament, the judges are to do their job and the prisons and penal system are to work as intended. In balancing those three interests, it was essential to have an independent council that could bring everyone together.

The great success of this is that it has worked. Now, why did it work? Why was it successful? Well, I recall, it must have been in 2009 that the then Lord Chancellor, Mr Straw, and the then Lord Chief Justice, Lord Judge, working no doubt at about this hour of the night, if I recall it correctly, in their shirt sleeves, were looking at the detailed clauses and agreeing the composition of the council—it went to that level of detail at the highest level. The compromise was made, and a successful institution was created; and successful it has been because it had virtually completed producing the guidelines by the time of the row that occurred earlier this year.

I would simply say that the idea of a constitutional settlement, carefully worked out in the spirit that was born in our renewed constitution in 2005 and in the actions taken in 2009, is the way in which we should do things if they are to result in success. Now, there was the hiccup earlier this year—I do think it is probably right to call it a hiccup, as it really was not much more than that if one looks at it and stands back. It is a pity it could not have been resolved there and then, but it cannot be any excuse for altering the delicate mechanism created by the previous Labour Government. There is no justification for it whatsoever.

It seems to me that there are two points. First, Clause 18 ought not to stand part of the Bill: it seems an absurd thing to say that the plan of an independent body has to be decided by one of the three parties that is involved. It would be a good idea, maybe, if all three were involved in looking at the plan, but why one of them? It makes no sense, and it tears up the carefully agreed compromise that was struck. Secondly, it would be much better if Clause 19 did not stand part of the Bill, because that is another aspect of this Government’s desire to tear up, for wholly unnecessary reasons, a proper compromise made by their predecessors in 2009.

However, I agree with my noble and learned friend Lord Burnett that we should go along in the spirit of compromise, but I regard that as a compromise, and it is one that I would hope the Government would accede to, and not pursue the destruction—because that is what it is—of the careful balance worked out by the late Lord Judge and by Mr Straw.

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

My Lords, I oppose Clause 18 and Clause 19, and my preference is, quite definitely, for both clauses to be removed from the Bill. I have not signed the opposition by the noble Lord, Lord Jackson, to Clause 18 standing part, because his reasoning is rather different from mine, but Clause 18 is, frankly, very strange. It is certainly pointless, just as the noble and learned Lord, Lord Burnett of Maldon, said, but it is also, with the greatest of respect to the Government and the drafters of the clause, legislatively illiterate.

I can see no reason in practice for the Sentencing Council to submit a business plan to the Lord Chancellor for approval as soon as possible after the beginning of the year—one wonders when that is supposed to be. But if there is to be a business plan, it is a strange imposition of a new duty on the Sentencing Council that it must declare in advance what it proposes to study, research and support during the course of the coming year without knowing what is coming down the track during the course of the coming year.

In any event, a business plan is pre-eminently a document for the body that is responsible for it and producing it itself to decide in its own discretion and to determine what it puts into it. Clause 18 demonstrates a serious lack of trust in the Sentencing Council to manage its business. Why should the Sentencing Council submit any business plan for approval by the Lord Chancellor, a member of the Government—with, certainly, an input into the Sentencing Council, but not a decisive or determining input?

Is it suggested that the Sentencing Council would not be entitled to consider other matters in the year, unforeseen at the beginning of the year, if they were not in the business plan? If that is not so suggested, what is the point of the business plan? It does not delineate the responsibilities that the Sentencing Council will carry out.

The clause represents an attack on the independence of the Sentencing Council. We have heard from both noble and learned Lords that it was set up by statute to be an independent body tasked with advising sentencing judges on the principles they should apply to sentencing—within the terms of the law as provided by Parliament in statute and the common law, of course, but independent in its advice to judges.

--- Later in debate ---

[Lord Lemos (Lab)]

My Lords, I thank the noble Lord, Lord Jackson of Peterborough, and the noble and learned Lords, Lord Burnett of Maldon and Lord Thomas of Cwmgiedd, for tabling these amendments. I am very grateful for their continued and constructive engagement on the Bill.

Amendment 80, tabled by the noble Lord, Lord Jackson of Peterborough, proposes to abolish the Sentencing Council for England and Wales. The noble Lord’s prediction is correct: I put on record that we strongly believe that it is right to retain the council, in view of the continued importance of its work in developing sentencing guidelines. He does not look completely surprised.

Over time, the council has developed offence-specific guidelines covering hundreds of offences, alongside a series of overarching guidelines. These guidelines have helped bring greater consistency, transparency and public understanding to the sentencing process. We welcome that.

The council also holds an important constitutional position, as mentioned by the noble and learned Lord, Lord Thomas, within the firmament of our justice system. It bridges the interests and responsibilities of Parliament, the Executive and the judiciary on sentencing policy and practice, while protecting the important responsibility of judges and magistrates to make individual sentencing decisions—I think I am reflecting what the noble and learned Lord said. For these reasons, I am afraid we do not support the amendment from the noble Lord, Lord Jackson. I urge him to withdraw it.

I turn to the amendments tabled by the noble and learned Lords, Lord Burnett and Lord Thomas. They have indicated quite clearly their opposition to Clause 18 and propose an alternative approach to Clause 19. I am grateful for their careful consideration of this. Their concerns are shared by the noble Lord, Lord Marks. I know that they were experts in this field and their opinions therefore carry a great deal of weight with the Government. As the Minister made clear at Second Reading, in bringing forward these clauses we are aiming to maintain public confidence in the guidelines that the council produces, particularly in view of the sustained public scrutiny that the council has been under of late, which is partly reflected in these debates.

Events surrounding the imposition guideline, on which I do not propose to dwell but which obviously I need to reference, earlier this year highlighted an example of the issues that can arise where guidelines cover areas of policy that should properly be for Ministers and Parliament to determine. We are keen to avoid a similar scenario arising in future, and that is why Clauses 18 and 19 have been drafted to introduce approval measures that provide greater democratic and judicial oversight of the council’s work.

I recognise that noble Lords, including the noble Lord, Lord Marks, are keen for more information about the intention of Clause 18. Put briefly, this clause will allow the Lord Chancellor to have a greater say over the guidelines that the council intends to develop across the year, ensuring that any plans are properly reflective of wider priorities across government and Parliament and with the wider public. As no noble Lord has so far mentioned this, I should stress that in preparing this clause we have had regard to similar provision that exists for comparable bodies across the justice system, such as the Law Commission.

[Lord Thomas of Cwmgiedd (CB)]

Will the Minister explain why the Law Commission, which is a body that looks at law reform for the Government, is to be equated with the independent Sentencing Council, which constitutionally balances the three interests? It would be very helpful to have that explanation. A second explanation it would be helpful to have is: is it intended that the business plan sets out in detail what is going to be in the guidelines so that the Lord Chancellor can look through it to see whether there is likely to be the kind of short sentence or two that occurred in this guideline that is unacceptable? It would be very interesting to know the Government’s thinking on both these points.

[Lord Lemos (Lab)]

I take the point that the noble and learned Lord makes that the Law Commission is different. That is why I said that we have had regard to that. On the second question that the noble and learned Lord raises, perhaps I can come to that in just a moment.

Clause 19 provides that the council can issue definitive guidelines only if the Lord Chancellor and the Lady Chief Justice each individually approve them. The amendments from the noble and learned Lords propose instead that the council should be free to issue definitive guidance unless both the Lord Chancellor and the Lady Chief Justice indicate that they do not consent. While I appreciate the sentiment and the spirit of compromise behind these amendments—which the noble and learned Lords, Lord Burnett and Lord Thomas, also referred to— I am afraid that we are not convinced that they would be the best way of securing the public confidence in sentencing guidelines that we seek. This is because they run the risk of definitive guidelines being published and implemented for use by the courts, even if the Lord Chancellor or, indeed, the Lady Chief Justice had indicated their discontent with them. We consider the current drafting of Clause 19 to be a practical and effective means of achieving our policy objective because it provides that the consent of the Lord Chancellor and the Lady Chief Justice must first be obtained before a definitive guideline can be published and implemented.

I emphasise that, in developing our current drafting, we have sought to reflect the distinct roles and responsibilities that the noble and learned Lord, Lord Thomas, referred to between Parliament, the Executive and the judiciary, as well as the careful balance that has been established for sentencing policy and practice. In particular, we are clear that these approval measures do not interfere—I hope that this is obvious, but I will emphasise it anyway—with the judiciary’s responsibility for setting sentences in individual cases.