Sentencing Guidelines (Pre-sentence Reports) Bill

Ashley Fox Excerpts

2nd reading
Tuesday 22nd April 2025 Commons Chamber

[Shabana Mahmood]

I have had constructive conversations with the Sentencing Council, and I have made it very clear that I do not really do personal. I certainly would not do it in relation to the judiciary, whose independence I uphold and whose security I am ultimately responsible for. I take those responsibilities very seriously. I swore an oath on my holy book, and that means a huge amount to me. There is a clear difference here about where the line is drawn between matters of policy and matters that are correctly within the purview of the judiciary, which is how the law should be applied in the cases that they hear. I am simply making it very clear that this is policy and is for this place to determine, but as I will come to later in my speech, this situation has highlighted that there is potentially a democratic deficit here. That is why I am reviewing the wider roles and powers of the Sentencing Council, and will legislate in upcoming legislation if necessary. I will now make more progress with my speech and give way to other colleagues later if people wish to intervene again.

The updated guidelines specifically encouraged judges to request pre-sentence reports for some offenders and not for others, stipulating the circumstances in which a pre-sentence report would “normally be considered necessary”. This included cases involving offenders from ethnic, cultural or faith minorities. In other words, a pre-sentence report would normally be considered necessary for a black offender or a Muslim one, but not necessarily if an offender is Christian or white, and we must be clear about what that means. By singling out one group over another, all may be equal but some are more equal than others. We must also be honest about the impact that this could have. Equipped with more information about one offender than another, the court may be less likely to send that offender to prison. I therefore consider the guidance to be a clear example of differential treatment. As such, it risks undermining public confidence in a justice system that is built on the idea of equality before the law.

[Sir Ashley Fox (Bridgwater) (Con)]

Given that the Sentencing Council refused the Lord Chancellor’s first invitation to rewrite its guidance, is she confident that the limited nature of this Bill is sufficient? Would she not be wiser to take a broader power to ensure that in future all sentencing guidance has an affirmative vote in this place?

[Shabana Mahmood]

It is right that, moving at pace, I have sought to have a targeted Bill that deals with this particular imposition guideline. I have made it very clear that I am conducting a wider review of the role and powers of the Sentencing Council. If we need to legislate further—maybe in the way that the hon. Gentleman suggests, although other mechanisms are also potentially available—I will do so. I am not ruling out further legislation—in fact, it is very much on the table—but it is right that we are moving quickly in order to deal with the problems that could be caused by the guidelines coming into force, and that I have taken targeted action in this short but focused Bill.

As I told the House a few weeks ago, I had several discussions with the Sentencing Council in the time leading up to 1 April, when the updated guidelines were due to come into force. I reiterate my gratitude to the council’s chair, Lord Justice William Davis, for engaging with me on this issue and for ultimately making the right call by pausing the guidelines while Parliament has its say. I should say again that I have no doubt whatsoever about the noble intentions behind the proposed changes, because I understand the problem that the Sentencing Council was attempting to address. Racial inequalities exist in our justice system and are evident in the sentencing disparities between offenders from different backgrounds, but as the Sentencing Council acknowledges, the reasons for this are unclear. Addressing inequalities in the justice system is something that this Government take very seriously, and we are determined to increase confidence in its outcomes, which is why we are working with the judiciary to make the system more representative of the public it serves.

I have also commissioned a review of the data that my Department holds on disparities in the justice system in order to better understand the drivers of the problem, but although I agree with the Sentencing Council’s diagnosis, I believe it has prescribed the wrong cure. Going ahead with the new guidelines would have been an extraordinary step to take. It would have been extraordinary because of what it puts at risk: the very foundations of our justice system, which was built on equality before the law. The unintended consequences would have been considerable, because the idea that we improve things for people in this country who look like me by telling the public that we will be given favourable treatment is not just wrong, but dangerous. We are all safer in this country when everyone knows we are treated the same. If we sacrifice that, even in pursuit of a noble ideal such as equality, we risk bringing the whole edifice crashing to the ground.

I know there are disagreements in this House with regard to the correct policy to pursue, not least between the shadow Secretary of State for Justice, who opposes the guidelines, and the shadow Transport Secretary, whose support for them I have noted already—though I suppose that does assume that the shadow Secretary of State for Justice really is who he shows himself to be today. I must admit that I have begun to question whether his principles are set or really of no fixed abode. After all, he did pose as a Cameroon centrist for so many years, and only recently became his party’s populist flag bearer. It is enough to make me wonder whether he is, in fact, a Marxist—but one of the Groucho variety. “These are my principles,” he says, and if you do not like them, he has others.

Regardless of our positions on this question of policy, one thing is clear: this is a question of policy. How the state addresses an issue that is systemic, complex and of unclear origin is a question of what the law should be, not how the law should be applied. Let me be clear about that distinction: Parliament sets the laws and the judiciary determine how they are applied, and they must be defended as they do so. I will always defend judicial independence, and as I said earlier, I swore an oath to do so when I became the Lord Chancellor. Given the shadow Lord Chancellor’s recent diatribes, including just hours ago in this place, he may want to acquaint himself with that oath, if he intends ever succeeding me in this position, although I am assuming that it is my job he wants, not that of the Leader of the Opposition.

--- Later in debate ---

[Sir Ashley Fox (Bridgwater) (Con)]

This Bill is unfortunately necessary because of the unwise actions of the Sentencing Council. While the Lord Chancellor is right to bring the Bill forward, she did so only at the very last moment. It was on Monday 31 March, mere hours before the guidelines were due to come into force, that the Sentencing Council was forced to perform a U-turn. Those guidelines would have led to a two-tier justice system in England and Wales.

The Sentencing Council did not withdraw those guidelines out of wisdom or principle—it did so because it was caught out. Its backtrack was quietly communicated to judges and magistrates several hours after courts had already opened on Tuesday. To make matters worse, the Sentencing Council’s message said that it still believed the policy was necessary. There was nothing necessary about that policy.

Under the proposed guidelines, judges and magistrates were told that pre-sentence reports should normally be required when sentencing individuals from ethnic, faith or cultural minority groups. What about those who are white, male and not part of a specified minority? They would not have fallen within that description. The implication was clear: defendants will be treated differently, not based on their actions or the harm they have caused, but based on their identity, and that is wrong. It was only after the intervention of my right hon. Friend the Member for Newark (Robert Jenrick), the shadow Justice Secretary, that the Lord Chancellor rightly took action. Race, culture and religion should never determine whether someone goes to prison. The Lord Chancellor said that she was willing to legislate to stop this travesty if the Sentencing Council refused to back down, and that is what we are now doing.

This is about the most fundamental principle in a free society: equality before the law. The question we must now ask ourselves is how the Sentencing Council got this so badly wrong and, judging by the comments of Lord Justice Davis, would continue to get wrong. The Sentencing Council’s guidelines would have had real consequences. In borderline cases where a judge is unsure whether to issue a custodial sentence, the presence or absence of a pre-sentence report can be decisive. The whole purpose of these reports is to influence the outcome. By tilting the system toward giving those reports preferentially to certain identity groups, the council would effectively be tipping the scales of justice, and the council knows it. Baroness Falkner, chair of the Equalities and Human Rights Commission, has warned that the guidelines may violate the Equality Act 2010.

If we allow sentencing outcomes to be guided by race, faith or cultural identity, we abandon the core British principle that the law applies equally to all of us. I agree with the Lord Chancellor that we should pass this legislation to override this guidance, but how confident is she that we will not face a similar situation again? I would like her to go further and ensure that Parliament is given oversight of all future sentencing guidance. We must put into law the principle that no factor like race, religion or cultural minority status should ever influence sentencing procedures. Justice must remain blind, not selectively blinkered. If we lose equal justice, we lose the foundation of a free society.

Sentencing Guidelines (Pre-sentence Reports) Bill

Ashley Fox Excerpts

Committee of the whole House & Report stage
Wednesday 30th April 2025 Commons Chamber

[Andy Slaughter (Hammersmith and Chiswick) (Lab)]

It is a pleasure to take part in the Committee stage of this short Bill. On Second Reading, only a few days ago, I set out my views on the merits or otherwise of the Bill; how it affects the role of the Sentencing Council; the council’s consultation on this guideline; and the response to that consultation by the then Government, through their sentencing Minister, and by the Justice Committee, through my predecessor as Chair, Sir Bob Neill KC.

I also regretted the way that the Bill has been used to undermine judicial independence, and to allow ad hominem attacks on judges under the guise of belated objections to the guideline. I am not the only person to raise these concerns, and I agree entirely with the article on this matter by Sir Bob in The Times last Thursday. I do not propose repeating any of his arguments; nor do I need to spend a long time on the amendments tabled for debate. Those proposed by the official Opposition do no more than continue on another front the culture war that is the obsession of the shadow Lord Chancellor in his quest for higher office.

I am more sympathetic to the new clause in the name of the Liberal Democrat spokesperson, the hon. Member for Eastbourne (Josh Babarinde), who is an important member of the Justice Committee. Given the fractured nature of the debate around the Bill, and the testy relationship between the Sentencing Council and the Ministry of Justice, it may be sensible to review the effect of the Bill, but I am not sure we need to put that into legislation. Indeed, the sentencing landscape is about to shift fundamentally with the imminent publication of the independent sentencing review, which is swiftly to be followed by a sentencing Bill. I suspect that issues raised by this Bill will get swallowed up in that process, and the Lord Chancellor has indicated that it may include a review of the role of the Sentencing Council.

I do not want to stir the pot further, but I observe that had the Sentencing Council been prepared, without the threat of legislation, to postpone implementation of the guideline, all these matters might have been dealt with in one Bill, and in the light of David Gauke’s recommendations. The parliamentary and ministerial time that has been spent debating a relatively narrow point could, in my view, have been better spent on other matters requiring urgent attention in our courts and prisons.

[Sir Ashley Fox (Bridgwater) (Con)]

Does the hon. Gentleman accept that the reason why we are here today is an error of judgment by the Sentencing Council, on which it refused to back down until threatened with legislation? Does the amendment proposed by the shadow Justice Secretary not offer greater protection to the public from future errors of judgment by the Sentencing Council?

[Andy Slaughter]

As I say, I do not want to repeat everything I said on Second Reading. I made a case then for why the Sentencing Council had behaved quite properly. It was complimented by many people—including the Justice Committee, on which the hon. Gentleman serves—for the way it conducted its consultation. I have a great deal of sympathy with the council and its chair, who were somewhat surprised by the reaction at that stage, the guideline having been approved by pretty much everyone who considered it at that time.

On the views of the hon. Gentleman and other members of the Justice Committee, whose opinions I have a great deal of time for, the Sentencing Council was a little stubborn when confronted with the Lord Chancellor’s view, as well as those of other Members of the House, and it could have acted to prevent us all needing to discuss this today; as I say, there are many other matters that need our attention.

On the amendments in the name of the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright), as I would expect from a distinguished former Attorney General, his amendments go to the central issue in the Bill, which is whether it does what the Government intend it to do. I hope the Minister will address the issue of what a “personal characteristic” is, as opposed to a particular demographic cohort, and the question of what characteristics are caught by clause 1.

I will take a few minutes, if I may, to add some related questions on which I am seeking the Minister’s guidance. First, I turn to the effect of the Bill on the sentencing guidelines already in force. The effect of the Bill goes beyond the imposition of the community and custodial sentences guideline and future guidelines; it would also render unlawful the inclusion of provision framed by reference to different characteristics of an offender in all definitive sentencing guidelines by the Sentencing Council that have already been issued and are in force. The potential retrospective effect of the Bill on guidelines already in force could create legal uncertainty as to their lawfulness.

There are two main examples of overarching guidelines in force that could be caught by the Bill: the guideline on sentencing children and young people, and the guideline on sentencing offenders with mental disorders, developmental disorders or neurological impairments.

In relation to offence-specific guidelines, a significant number contain mitigating factors framed by personal characteristics that have expanded explanations referring to the need to order a pre-sentence report—for example, an explanation for the mitigating factor of “age and/or lack of maturity” in the aggravated burglary guideline. By way of another example, the explanation of the mitigating factor of pregnancy, childbirth and post-natal care in the same guideline states:

“When considering a custodial or community sentence for a pregnant or postnatal offender…the Probation Service should be asked to address the issues below in a pre-sentence report. If a suitable pre-sentence report is not available, sentencing should normally be adjourned until one is available.”

--- Later in debate ---

I am concerned that there are ramifications to proposals in the Bill that have not been covered. It may be that those can be corrected in the other place, or it may be that matters have to wait until we have a sentencing Bill in the autumn. While I entirely understand the Government’s frustration with the Sentencing Council, I do not feel that this Bill is the solution to the problems that they have identified, whereas its consequences have been exaggerated in many respects. If we want a system that is not only fair and robust, but clear in dealing with when pre-sentence reports are needed, we need to return to this issue on a future occasion.

[Sir Ashley Fox]

I have already recorded my support for the principle of this Bill, which is unfortunately necessary to uphold the principle of equal justice. I speak in support of amendments 3 and 4, which would further strengthen this legislation.

Amendment 3 would give the Justice Secretary the power to prevent future errors of judgment by the Sentencing Council. It would require the council to secure ministerial consent before issuing any sentencing guidelines concerning pre-sentence reports. We should be clear that that is not a measure aimed at politicising justice. However, we must ensure democratic oversight of a body that has shown itself to be capable of committing a serious error of judgment, which led to the situation today. The reason why we are legislating is that the Sentencing Council’s guidance proposed treating offenders differently based on their ethnic, cultural or religious identities. That is wrong.

[Ms Diane Abbott]

The Sentencing Council has at no point suggested treating defendants differently according to their ethnicity or religion. All it has tried to do is ensure that judges and magistrates have the maximum information.

[Sir Ashley Fox]

The Sentencing Council says that if, for example, someone is a white, Christian male, they are less likely to benefit from a pre-sentence report than if they were a member of a religious or ethnic minority. I believe that that is wrong.

[Ayoub Khan (Birmingham Perry Barr) (Ind)]

Does the hon. Member know that any defendant before the courts who has no previous convictions, despite the seriousness of the offence, is entitled to a pre-sentence report?

[Sir Ashley Fox]

I am grateful to the hon. Member for his intervention. As a former solicitor, I am familiar with that provision, and I agree that any defendant who has not yet received a custodial sentence should have the benefit of a pre-sentence report. However, imagine two criminals who both have a criminal record, but one is a member of a religious or ethnic minority and one is not. The guidelines propose treating them differently, and that is not justice.

[Dr Evans]

Is the fact not that the sentencing guidance said that a pre-sentence report would normally be considered necessary, and then went on to talk about race and religion? Making those distinctions immediately apparent in sentencing guidance, which could mean that a white Christian male would be treated differently if they committed the same offence as someone of a different ethnicity, is the fundamental problem.

--- Later in debate ---

[Sir Ashley Fox]

Indeed. I am grateful to my hon. Friend for making that point; the point I wish to make to the Committee is that all defendants should be treated equally. It should not be a matter of whether or not they are a member of an ethnic or religious minority.

The Sentencing Council did not withdraw the guidance on principle, and it did not acknowledge its error. It was forced to backtrack only after public and political pressure, largely from the shadow Justice Secretary, my right hon. Friend the Member for Newark (Robert Jenrick). Even then, the council continued to defend the policy’s rationale in private communications to the judiciary. That is not accountability—it is evasion. That is precisely why amendment 3 is so vital. We cannot allow this to happen again, and Parliament must have a say when guidance threatens the impartiality of our legal system.

Amendment 4, which addresses the content of sentencing guidance itself, is equally important. The amendment would make it illegal for sentencing decisions to consider a defendant’s group identity, particularly in reference to historical discrimination that has no bearing on their individual case. Current bail guidance from the Ministry of Justice already advises courts to consider the trauma suffered by individuals whose relatives experienced racism or cultural discrimination. It even refers to “important historical events” and their supposed differential impact on specific ethnic or cultural groups. That approach undermines the principle that people should be judged as individuals, not as members of a group. Amendment 4 would draw a clear legal line: mitigating factors in sentencing must relate directly to an individual’s actions and circumstances. Inherited identity or injustices not experienced by a particular convicted criminal should not be relevant to the sentence passed by the court.

Race, religion or cultural background should not determine whether someone is sent to prison, and it should not determine whether or not someone should benefit from a pre-sentence report. The Lord Chancellor has argued that the current Bill allows her to “move at pace” to reverse the worst aspects of the Sentencing Council’s proposals, but this is not just about moving fast; it is also about ensuring that we never face this situation again. Amendments 3 and 4 are essential if we are serious about protecting the most basic principle of a free society, which is equality before the law. Without them, the Bill addresses the symptoms, but not the cause. As such, I urge the Committee to support those amendments and reaffirm our commitment to equality before the law.

[Ms Abbott]

I entirely agree with Members who are making the case that we should all be equal before the law. The problem is that the figures show that that is not the case, and it has not been the case for decades. If we look at the statistics for the numbers of people in prison, black people make up 12% of the prison population, yet we only make up 4% of the general population. That tends to raise the concern that we are not equal before the law across the whole custodial and criminal justice system. I remember that years ago, before some Members were in the House, you could not say anything about institutional racism in the police force and how black people were treated by the police. It took Stephen Lawrence and the Macpherson inquiry to get politicians and people who speak for the state to even acknowledge that there was such an issue as institutional racism in the police force.

--- Later in debate ---

[Josh Babarinde (Eastbourne) (LD)]

I made the Liberal Democrat position on this very short Bill, and on this issue more widely, abundantly clear in the last debate that we had on this matter: we believe in equality before the law, we believe in the rule of law, and we believe that no one is above the law. That is why we believe that anyone facing the prospect of a custodial sentence should be the subject of a pre-sentence report. We believe that the state has that duty before dispensing its power to deprive someone of their liberty.

There is no world in which judges and magistrates having more information about an offender, whoever they are, and their circumstances is a bad thing. That is why it is an injustice that the use of pre-sentence reports had fallen from 160,000 in 2015 to just 90,000 by 2023, which is a cut of 42%. That has left judges and magistrates with fewer resources and insights than ever with which to go about their work. Less informed sentencing means less satisfactory sentencing outcomes. It means more reoffending, more victims and more turmoil, and that is unacceptable. That is not justice.

This is a product of the under-investment in our Probation Service—it compiles the reports—which was gutted under the Conservative Government. I therefore welcome the fact that the Minister, in his closing speech on Second Reading, agreed with me that

“the debate should be about how we move to universality of pre-sentence reports, not about rationing.”—[Official Report, 22 April 2025; Vol. 765, c. 1019.]

I will come to new clause 1 shortly.

[Sir Ashley Fox]

The hon. Member will be aware that any sentencing magistrate or judge can request a pre-sentence report, so I would say that his use of the word “rationing” is inappropriate.

[Josh Babarinde]

I do not know whether the hon. Member has read the Sentencing Council’s summary of the responses to the draft guidance that was in consultation under the Conservative Government, but it paraphrased magistrates and judges as saying that driving the universality of pre-sentence reports would be challenging in the light of the limited resource for the Probation Service and of the court backlogs. I would suggest that he consult that document to see the phrases used by those legal professionals.