Sentencing Bill

Lord Foster of Bath Excerpts

Wednesday 26th November 2025 Lords Chamber

[Lord Hogan-Howe (CB)]

That is probably for the Minister. I say only that I fundamentally agree with the noble and right reverend Lord, but discretion for judges has of course been limited in some ways. For example, there are minimum sentences: of five years if you carry a firearm and of six months on second conviction if you carry a knife after the age of 18. There are occasions when their discretion is fettered, and the Sentencing Council does that anyway with a list of a type.

I am with the noble Viscount, Lord Hailsham. The Government offer one broad principle, but I do not think it is sufficient to deal with some of my concerns. It may be improved. It may be that there should be a list—I would not argue that—but, personally, I am not reassured by the Government’s approach to what I take to be the broad assumption that people will not go to prison for a 12-month sentence. There could be some horrible cases and somebody might get hurt. That is what worries me.

[Lord Foster of Bath (LD)]

My Lords, I will briefly challenge some of what has been said. The noble Lord, Lord Hogan-Howe, rather implied that it was his belief that the Bill intends to remove all short sentences. From the Minister’s opening remarks and those of others, that is clearly not the case. There is, however, very good reason for reducing the number.

The Minister pointed out that there is a significant reduction in the level of reoffending. He has not given the figures, so I will share them with the Committee, as a result of the work of your Lordships’ Justice and Home Affairs Committee, which I chair, in a report that was done during the chairmanship of my noble friend Lady Hamwee. It showed the figures then—they have been replicated by more recent research—that, of offenders who are put in prison for short sentences and are released, 60% reoffend, whereas the average reoffending rate for those on custodial sentences is only 24%. As that report said, and as we will discuss in future amendments, there are very good ways in which we can improve non-custodial sentences to reduce the rate of reoffending even more.

I am going to disagree during our deliberations over the three sessions that we will have on the Bill—maybe more—with a lot of what the noble and learned Lord, Lord Keen, says, but I entirely agree with him, and it has been reflected by the noble Lord, Lord Hogan-Howe, and my noble friend, that none of these measures we are talking about will succeed unless we have the resources to do the job. Again, I say to the noble Lord, Lord Hogan-Howe, and others that there are amendments coming later where we can address the need for more probation officers and more people in our prisons. There is not currently, as far as I am aware, an amendment on police numbers, but there would be time to put one down.

The only other thing I want to say is how much I agree with the noble Viscount, Lord Hailsham, about getting rid of the list argument, which has also been picked up. I hope the Government will listen to his proposal about finding language that can be used about those people we know we would not want to put on short sentences, but not necessarily have the sentence inflation that has, sadly, caused a problem for us and is one reason we have so many prisoners in our prisons today.

[Baroness Chakrabarti (Lab)]

My Lords, I agree with much of what the noble Lord, Lord Foster of Bath, said, save that I think that the Bill already deals with the problem identified by the noble Lord, Lord Hogan- Howe. It is important to look at the text of the Bill: this is a “presumption” against short sentences; it is not a bar to them. Of course, there is a philosophy behind the presumption: the authors of the Bill and the Government have taken the view, which is not a revolutionary view in relation to the evidence that has been collected over many years, that, generally, short sentences are not a great idea. They do not lead to rehabilitation; they do not help with reoffending.

If you disagree with that and think that a short, sharp shock is a jolly good thing, you are obviously going to disagree with the Bill and these provisions. Having lists of various offences is a good wheeze, but it is not consistent with the philosophy of the Bill, which is that, in general, short sentences do not work—they do not keep the public safe because they do not rehabilitate anyone and, in fact, some people go to the university of crime for a short course of less than 12 months and come out with drug problems, relationship breakdown and other issues that they did not have before. But this is only a presumption; it is not a bar. To respond to the noble Viscount, Lord Hailsham, with whom I so often agree, I do not think that anything else is required as an alternative to the list approach of exceptions, because there is the residual discretion provided in the Bill for exceptional circumstances.

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[Lord Hogan-Howe (CB)]

My Lords, I want to reassure the noble Lord, Lord Foster, that I was not a co-author of this Bill; it is entirely the responsibility of the Government. I was merely saying I had a similar view: that prison numbers could come down and we could be safer. That was the discussion I had with the noble Lord, Lord Timpson, after the Bill was announced. If it had been my Bill, there would have been something in it about a 10% or 20% reduction in the Sentencing Council guideline targets for maximum or minimum sentences. In my view, there have been two causes of prison numbers going up: the lack of the ability to get parole, which has been addressed by the Bill, and the grade inflation in sentences, which has had nothing done to it. Unless someone would like to correct me, no political party has gone into any election promising lower sentences. Has anybody ever said that?

[Lord Foster of Bath (LD)]

Without wishing to delay our deliberations, I point out to the noble Lord that if he feels passionately about it, there is still time for him to draft and put down amendments on the issues he raises. He may well find support from these Benches.

[Lord Sentamu (CB)]

My Lords, let us remember that we passed a Bill here about the Sentencing Council, when there was a disagreement between the Ministry of Justice and the Sentencing Council, and we know how we resolved that, so we cannot put too much faith without that legislation, which went through here not long ago.

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[Viscount Hailsham (Con)]

My Lords, I entirely agree with the sense behind the amendment, but I notice that it would be a mandatory requirement—the judge must do it. My own preference, as is so often the case, is to leave it to the discretion of the judiciary. As I understand the position, they already have the power to do what is suggested and I would leave it to them—there may be exceptional cases where it is inappropriate to do so.

[Lord Foster of Bath (LD)]

My Lords, I said earlier that there would be few occasions when I was likely to agree with the noble and learned Lord—I am sorry, I have forgotten his name—Lord Keen. In fairness, I should have added at the same time the noble Lord, Lord Sandhurst, because he has just moved an amendment that, in view of what I have said, he might have expected me to disagree with, but actually I very much agree with the broad thrust of what it proposes, although I accept the point made by the noble Viscount, Lord— I am trying to remember his name too; I apologise, my mind is going tonight—Hailsham.

I referred earlier to a report from the Justice and Home Affairs Select Committee when it was chaired by my noble friend Lady Hamwee—whose name I have been able to remember. That report was called Cutting Crime: Better Community Sentences. I referred to the fact that statistics show that current community sentences reduce the level of reoffending in comparison to those on short-term prison sentences, though I accept the caution of the noble and learned Lord, Lord Keen, when it comes to how we interpret those statistics. Still, we know that they are already better.

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[Baroness Porter of Fulwood (Con)]

My Lords, I support Amendment 35, as outlined by my noble friend Lord Sandhurst. As I said at Second Reading, good intentions go only so far. The Bill transfers a large part of the responsibility for rehabilitation into the community, a change that, as has been pointed out by many, the evidence supports. Not only does it have benefits for those who would previously have served a short custodial sentence but, in theory, by reducing the number of those in prison over time, it should provide the capacity that is needed to ensure that those in the prison estate are better able to access the education and support services they need to give them a second chance on release.

The challenge, though, is that this Bill places more people out in the community but does not go far enough in answering the question of what support they will be receiving to help address some of the underlying factors driving their offending. Unless this happens, it could make a difficult situation worse. This amendment specifically deals with those on a suspended sentence, obliging them to undertake at least one form of support, such as an apprenticeship.

The proportion of people with a rehabilitation activity requirement attached to their suspended sentence is relatively high at the moment. The challenge is that adequate resourcing for them is often not available and access can be patchy. A Ministry of Justice assessment from earlier this year found that the rehabilitation activity requirement

“tended to be seen by probation staff as the ‘right idea in theory’ but more resource is needed to deliver it appropriately”.

When asked about the biggest barriers that affect how the rehabilitation activity requirement is delivered, responses tended to centre on limited funding and resource. All practitioner participants reported that resource constraints—for example, staffing shortages and time pressures—and practical constraints, such as a lack of meeting rooms, were barriers to the effective delivery of rehabilitation activity requirements.

This matters because, as the Magistrates’ Association pointed out in its submission to the Sentencing review:

“The impact of delays on offender outcomes is clear. One magistrate told us that an offender was given a Mental Health Treatment Requirement … as part of a suspended sentence, yet their first appointment didn’t occur until nearly six months after it was imposed. The offender was not able to access treatment in time and subsequently reoffended. This may not have happened had he been given support earlier”.


If this is happening at the moment, my worry is what will happen when the system is placed under much greater strain through many more people being managed in the community. Although the Government have committed to some additional funding for probation, they have published no detailed breakdown of how this funding will be deployed. They have also not addressed the central role that the many community and voluntary organisations in this sector play as a critical part of the delivery model for this type of activity.

[Lord Foster of Bath (LD)]

If I may, I would like to help the noble Baroness with the very powerful argument that she is making, with a set of statistics that I hope noble Lords will find worrying. If we look at the 91,000 people on average who are currently engaged in probation, community sentences and so on, we find that, in 2023, only 1,302 of them even started treatment—that is 1.8%. The shortage of support services is deeply worrying.

[Baroness Porter of Fulwood (Con)]

I thank the noble Lord. To build on that, more needs to be done for the community and voluntary organisations that, sitting alongside this Bill, will help build the capacity to deliver, so that the rates he outlined will be increased. Policy examples include multi-year, unrestricted grant funding and regional commissioning.

I return to the amendment. By being more explicit in the Bill about the central role that rehabilitative activity plays, my hope is that the Government would be forced to resource this area sufficiently and signal that they view these services and programmes as essential, rather than discretionary.

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[Lord Jackson of Peterborough (Con)]

I understand the point that my noble friend is making—

[Lord Foster of Bath (LD)]

Perhaps I can help the noble Lord a little in his answer to his noble friend. I am sure he has seen that later on the agenda there are a number of amendments in my name and those of others in the Committee proposing that the Bill not be allowed to go ahead until we have evidence of sufficient numbers of prison officers and in the Probation Service. That might be the way out of his dilemma.

[Lord Jackson of Peterborough (Con)]

I do not often get in-flight refuelling from the Liberal Democrat Benches, but I am grateful that it has happened on this occasion. If I had my way, I would encourage the Government to develop education and training plans, in primary legislation, for each individual prisoner in the prison estate.

As the noble Lord, Lord Foster of Bath, has said, this is a wide area for debate. This amendment begins that debate by trying to encourage the Government to put processes in place in the Probation Service and other key stakeholders to assist prisoners. If someone is in a position where they have already been given a suspended sentence, it seems very sensible, in terms of opportunity cost and saving the taxpayer significant amounts of money in the long term, to have a position where education, training, drug treatment and other areas of work are not just encouraged but mandatory. On that basis, I surely support my noble friend’s excellent amendment.