Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Beith Excerpts

2nd reading
Wednesday 7th May 2025 Lords Chamber

[Lord Beith (LD)]

My Lords, I do not regard the decision of the Government to try to resolve a difference of view about the contents of the guidelines in bringing legislation before this House as improper, or as an assault on the constitution or on the judiciary, but I think it is extremely ill-advised. It is ill-advised because of the fast-tracking, because of the impression it gives about pre-sentencing reports and because the Bill is so incoherent. I want to deal with each of those things.

It seems to me that the Government have encouraged a practice, to be deplored among Governments, of finding a political problem, getting out the legislative shotgun and firing the trigger immediately, before any serious thought has been given to how a problem can be dealt with properly and effectively.

The Bill is both unnecessary and undesirable. It is undesirable because it gives the impression that pre-sentence reports are in some way conferring a privilege, whereas they are in fact assisting the judge. If in some cases they lead to someone being given a non-custodial sentence, that may well be because a non-custodial sentence is more likely to reduce re-offending on the part of that person. They are to assist the judge to make important considerations in sentencing practice which need to be made—and increasingly need to be made in a situation where our prisons are desperately overcrowded and their record in reducing reoffending, as the Minister knows all too well, is very weak indeed.

I come to the contents of the Bill. The Bill says that guidelines about pre-sentence reports

“may not include provision framed by reference to different personal characteristics of an offender … in particular … race … religion”

or

“cultural background”.

The phrase “in particular” implies that other personal characteristics, unspecified, could fall within the prohibition. The Government’s Explanatory Notes on the Bill confirm at paragraph 15 that the list in the Bill is “non-exhaustive”. That has been further confirmed by various statements that Ministers have made.

How does the Sentencing Council know if a category or cohort of offenders, other than those named in the Bill, is covered by the prohibition? It is a very bad practice to impose on a body—in this case a single body, the Sentencing Council—a law whose extent it cannot know. There is no known method of deciding what the status in relation to this law is of a characteristic which is not specified in it and which does not fall within some generally described category.

We are all aware of numerous categories to which this applies. There are pregnant women, who are already covered, of course, by R v Thompson in 2024. It is not clear to me whether, if the sentencing guidelines included a phrase drawing attention to recent case law on the subject of pregnant women being given custodial sentences, the Sentencing Council would be acting illegally. What is to happen in those circumstances?

One can think of a number of other circumstances where there is already provision in statute and which the Government appear to be saying are unaffected by the Bill, but it is not clear whether the Sentencing Council can lawfully draw attention to those features, which fall within personal characteristics. The example that I took is not named in the Bill, but it applies to the named and the unnamed characteristics. There are many of them—victims of modern slavery; victims of domestic violence; offenders brought up in local authority care; victims of sexual abuse in childhood; residents of a notorious gang-ridden housing estate characterised by intimidation; children. Nearly all those categories do not fall within those specified in the Bill but obviously ought to be in a pre-sentence report. What happens if the Sentencing Council draws attention to any of those in any future version of the guidelines which emerges from this process? The Bill is a mess.

We have a crisis of re-offending, a crisis in our prisons and a sentencing review led by David Gauke. Those are the sorts of things that we need to be talking about. There is no crisis in the Sentencing Council; there is a disagreement about the form of words to be used to give guidance to courts on sentencing. However, that does not justify fast-tracking of Bills, which attenuates proper debate and discussion and could lead to the situation described by the noble and learned Lord, Lord Hope, of the Government being reluctant to accept an amendment because the fast-tracking would be upset by the Bill going back to the Commons. That is nonsense, because it would be done in a day. The noble and learned Lord’s guidance was very wise. I hope that we are not deterred from amending the Bill by the need for it to go back to the other House. That would make a nonsense of what we are here to do and the responsibilities that we have. In the Constitution Committee report, which is now technically published but not yet widely seen, it makes clear its objections to that fast-tracking process.

We have all these crises and problems in relation to our prison system and sentencing policy, yet here we have a Bill which does nothing to address any of them and is an ill-advised move in circumstances which could be resolved in a much better way.