Sentencing Guidelines (Pre-sentence Reports) Bill

Jonathan Brash Excerpts

2nd reading
Tuesday 22nd April 2025 Commons Chamber

[Shabana Mahmood]

For me, one of the most moving parts of the parliamentary day is when the day starts with prayers. Those are Christian prayers, and I am of the Muslim faith, but I always find it moving to be part of them and to hear them. They remind us that we all belong to a country with a long heritage, which is steeped in faith. The source code for much of the law of England and Wales is the Bible. The hon. Gentleman makes some broader points on the issue of faith and how important it is, and I suspect that he and I have a lot in common in that regard. There must never be differential treatment before the law of our land, and before any court, on the basis of faith.

[Mr Jonathan Brash (Hartlepool) (Lab)]

I welcome the Lord Chancellor’s point about parliamentary sovereignty and that fact that policy must be determined by this place. I think many Members from across the House will have been quite shocked by the response of the Sentencing Council to her letter when she asked it to consider the guidelines again. Does she agree that if this place continues to butt heads with the Sentencing Council over guidelines like these, maybe the best thing to do is abolish the Sentencing Council?

[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.

--- Later in debate ---

[Robert Jenrick (Newark) (Con)]

How did we get here? It takes a special kind of uselessness to engineer a crisis entirely of your own making and then to come to this House asking for applause as you legislate your way out of it. Let us remind ourselves what actually happened here. The Sentencing Council, an unelected unaccountable quango created by the Labour party, issued guidance that would have divided our criminal justice system by race, religion and identity; a two-tier system as offensive to common sense as it was to the most basic and important principle of equality before the law.

The Justice Secretary, asleep at the wheel, either did not know or did not care. Her officials signed off the guidance, her Ministry nodded it through, and the council published it; the guidance was due to come into force. Only then, after I raised this issue with her in this House, and in the face of fierce opposition from the Conservatives, the press and the public, did she rouse herself from her stupor—only then did she discover her principles.

Even at that point, however, the Justice Secretary did not act decisively. She did not use her powers to sack the architects of this shameful guidance, support my legislation or bring forward immediate legislation of her own to stop it. What did she do instead? She wrote a letter begging the council to reconsider. Such is the pace at which she moves—or, rather, crawls—that it took a further seven days to put her thoughts in writing after a meeting.

When the council did not move, the Justice Secretary threatened action—only to be humiliated by the chair of the council, who made clear that if she tried, he would take legal action and potentially challenge his own Justice Secretary. So incompetent was she that the Opposition had to take it upon ourselves to prepare a judicial review to do the Justice Secretary’s job for her, and such was the level of chaos over which she nominally presided that the Government’s own legal service was trooped out against us to defend the very sentencing guidelines that the Justice Secretary had denounced as two tier.

[Mr Brash]

In November 2023, the Sentencing Council consulted on these guidelines, and said that a pre-sentence report may be “particularly important” if an offender belongs to an ethnic, cultural and/or faith minority community. Does the shadow Minister agree that it was particularly important? I do not. If he does not agree, why did he say nothing for two years?

[Robert Jenrick]

I have to applaud the hon. Gentleman for reading out his Whips’ questions there. I have said it before and I will say it again, however: I do wish that he and those on the Labour Front Bench would stop perpetuating something that is obviously untrue. They know it is untrue. It has been said numerous times. The Sentencing Council itself—[Interruption.] Let me finish my point, because it is important.

--- Later in debate ---

[Robert Jenrick]

That is the very real risk of what we see, not just in these aborted sentencing guidelines, but in the broader fabric of two-tier justice that we are revealing with every passing day. What we all want to see, and what I believe the hon. Member for Hartlepool (Mr Brash) wants to see as well, is equality before the law. That means that in no instance should the law be applied differently depending on the colour of people’s skin or the faith that they abide by. We must all fight against that, because it is immensely corrosive to public trust and confidence in the criminal justice system.

[Mr Brash]

The right hon. Member is painting a terrifying picture of our justice system. In his work, has he managed to identify when these issues all started?

[Robert Jenrick]

The guidelines we are talking about came into force—or would have done—under this Labour Government. I will not return to everything I said earlier, but those of us who were in this Chamber on the day that I revealed this issue all know that neither the Justice Secretary nor any of her Ministers had the faintest idea that any of this was happening. I watched the Justice Secretary look to her Ministers; she was greeted by blank faces. They had no grip on what was happening in their Department.

The hon. Member for Hartlepool makes the good point that the issues that we are discussing predate this Labour Government. This is a broader issue facing our country. We all have to be defenders of equality under the law. I do not seek equality of outcome in our criminal justice system; I seek equality of treatment. That is the heart of a fair criminal justice system. That may be a point of difference between some of us in this House. All I seek is for every person in this country—man or woman, regardless of their religion or the colour of their skin—to be treated exactly the same by the law.

Everywhere we look in the Ministry of Justice, we see this ideology. The most worrying part is that I think the Justice Secretary knows this. She stood here and said that the appearance of differential treatment before the law is particularly corrosive, and I agree wholeheartedly with her.

--- Later in debate ---

[Mr Jonathan Brash (Hartlepool) (Lab)]

I welcome this Bill and the swift action taken by the Lord Chancellor to correct a clear wrong. Had they been implemented, the Sentencing Council’s new guidelines would have introduced differential treatments before the law, which can never and should never be acceptable. The question is: how did we get to this point? Did these guidelines simply appear out of nowhere? Of course they did not. They were subject to extensive consultation under the previous Conservative Government, who welcomed them without reservation.

The consultation published in November 2023 and closed in February 2024 indicated clearly that a pre-sentence report “may be particularly important” if the offender belonged to ethnic, cultural or faith minority communities. The then Conservative sentencing Minister, the hon. Member for Orpington (Gareth Bacon) wrote to the Sentencing Council, thanking it and welcoming the expanded guidance on the circumstances in which courts should seek pre-sentence reports. Let us be crystal clear: it was the last Conservative Government who endorsed the idea that it was “particularly important” to request pre-sentence reports for individuals from ethnic, cultural or faith minority backgrounds and therefore, by extension of basic logic, less important for other groups. The Sentencing Council had their answer: the then Conservative Government supported its changes.

Given what we have heard today, there must surely have been a flurry of opposition in certain quarters. What did the now shadow Justice Secretary, the right hon. Member for Newark (Robert Jenrick) say about it at the time? The answer is nothing. What did the Leader of the Opposition say? Nothing. Perhaps if they had bothered to stand up and do their job, as Labour has today, these guidelines would never have been issued in the first place.

For all the failings of the last Conservative Government, many Members were appalled by the outright refusal of the Sentencing Council to amend the guidelines when requested to do so by the Justice Secretary. That refusal is the reason we find ourselves here today. Far too much of the British state now appears to operate beyond the reach of those democratically elected to lead it. There are too many quangos, too many faceless bureaucracies, too many levers of power seemingly detached from those whom the people have chosen to govern them. The British public do not understand how a court can block the deportation of a convicted criminal whom the Government wish to remove from the country. They do not understand how a Chancellor is constrained in his or her decision-making by the actions of an unelected Office for Budget Responsibility, and they do not understand how a Justice Secretary cannot simply prevent unequal treatment before the law.

The Bill is the right response to this specific situation, but how long will it be before we find ourselves here again, in another stand-off with the Sentencing Council, over another issue on which unelected officials clash with democratically accountable politicians? I believe that in the fullness of time—and I welcome what the Lord Chancellor said today about her further review—we will have to go further; I believe that we should abolish the Sentencing Council altogether.