Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Hope of Craighead Excerpts

2nd reading
Wednesday 7th May 2025 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, what a pleasure it was to listen to the maiden speech of the noble Baroness, Lady Nichols of Selby. I am so glad that she took such trouble to explain the complicated background that brought her to this House; it greatly adds to our understanding of the way in which she will approach the work that she will undertake here. It was an inspiring speech, and she also contributed to the merits of this debate, which was very valuable.

I was the last to work with the noble and learned Lord, Lord Etherton, on his final contribution to the work of the House. He sat as chairman of the Holocaust Memorial Bill Select Committee, which was a difficult task because many Members of this House were very concerned about its provisions. He presided over it with great care, great skill and considerable charm. If he was unwell—and he may well have been—he did not show it, so he conducted his duties as chairman with a great deal of courage. It was typical of his kindness that, as we were approaching Christmas and finishing our work, he did something unusual that I have never encountered before: he, as chairman, sent each member of the committee a Christmas card. That may seem like a rather light point to make, but it was very typical of a man who was very down to earth, very kind and very thoughtful. We shall miss him very much.

As others have said, it would be lovely if we could resolve the dispute that has given rise to this Bill without legislation. However, we have the draft legislation, so I will address what we have before us without speculating as to what might have happened.

As we heard, particularly from the noble Lord, Lord Jackson of Peterborough, there are two issues of principle that arise here: one is the independence of the judiciary and the need to respect that, and the second is the principle of equality before the law. As for the first, while the Sentencing Council includes the judiciary in its membership and is there to provide guidance to the judiciary, I do not see this as a reason why the Bill should not proceed. It does not compromise the independence of the judiciary in the exercise of its judicial function. It does not seek to deal with any decisions delivered in court by members of the judiciary. Its sole concern is with an issue of policy raised by the council’s revised guideline on the imposition of community and custodial sentences. It does not address the passing of a sentence itself.

It is surely right, then, that the Government should ask Parliament to engage with issues of that kind if they find themselves in disagreement with what the council has proposed. Our statutes are full of examples of situations where policy decisions about the nature and length of sentences are made by Parliament. It was not always so: when I began my practice as a lawyer—earlier than the noble Lord, Lord Bach— 50 years ago, Parliament did not really say anything about sentencing. There were no sentencing councils; it was all a matter for the judiciary. We have discovered that there is a need for balance and consistency. That is where the Sentencing Council comes in, and one can understand its function.

The fact that the Bill disagrees with a policy decision by the council does not in any way undermine or offend against the principle of the independence of the judiciary. It is the application of the principle that everyone should be equal before the law that lies behind the Bill. I understand the Government’s concern that the revised guideline does not seem to respect that principle. To say that a PSR is normally to be considered necessary if the offender is from an ethnic, cultural or faith minority community inevitably raises the question: what about the others? What about the rest of those who are not from those particular backgrounds?

As everyone knows, due to years of hollowing out by successive Governments, the Probation Service is short of money. It is underresourced, and that has given rise to the tragic situation that the noble Lord, Lord Bach, described so well—the diminution in the number and possibly the quality of the reports that are being delivered. The problem we are addressing is that although everybody who faces a custodial or community service should have a pre-sentence report, that is not something that the Probation Service can deliver for everybody.

As I was not part of the discussions, I do not know why the council felt it necessary to issue the revised guideline, but it seems likely that it felt that priority should be given to some in a situation where a PSR cannot be got for everyone. I can understand that approach.

I agree with the Government that there is a risk that the revised guideline, although sensible and understandable for the reason I just discussed, will disadvantage those who are not from the particular cohorts that it has identified. They face the prospect of being sentenced without a pre-sentence report, and that is a result that, in most cases, no one would wish to see.

My principal concern, which others have touched on, is with the wording of the Bill. This was indeed, as the noble Lord, Lord Bach, told us, a point raised at Second Reading in the House of Commons by Sir Jeremy Wright, the former Attorney-General. He later tabled an amendment which addressed his point. As he said at Second Reading, we ought not to address one inequality by replacing it with another. He suggested, and I respectfully agree with him, that the phrase “personal characteristics” in proposed new Section 120(4) of the Coroners and Justice Act 2009 is too broad. As worded, it seems to prevent the issue of guidelines to deal with cases where information about a particular personal characteristic—I rephrase that as “an individual’s circumstances”, because it might include individuals’ circumstances too in that broad language—is crucial to the just disposal of the case.

Take circumstances such as impaired physical or mental health, autism or some other condition or disability of that kind, pregnancy, or the fact that a person is a primary carer. These are examples of cases to which, on its present wording, the wide prohibition that the Bill seeks to impose would seem to apply. Sir Jeremy’s point was that there is a danger of throwing the baby out with the bath-water, and he wondered why the more precise language in the Explanatory Notes was not used.

I ask the same question. The Explanatory Notes say that the Bill will

“prevent differential treatment … It does this by preventing the creation of a presumption regarding whether a pre-sentence report should be obtained based on an offender’s membership of a particular demographic cohort”.

Sir Jeremy had those particular words in mind. The use of the phrase

“membership of a particular demographic cohort”

would avoid extending the exclusion too far, while addressing more precisely the problem that the Government wish to address.

I have rather gathered from what the Minister said in introducing this debate that it is the Government’s intention that the prohibition should extend beyond the list which is given in the new subsection. That is troublesome. If the Government wish to stick to the language that they have chosen, they really should consider rewording the definition in new subsection (12). It says that, for the purposes of Section 120 of the 2009 Act,

“‘personal characteristics’ include, in particular”

listed items. The word “include”, if the Minister will forgive me for saying so, really is a weasel word. It stretches the point into the unknown, over which the House has no control or opportunity for scrutiny. When a prohibition is legislated for—a prohibition in particular—it should be precise. That would be achieved by replacing “include, in particular” with the simple word “means”, which would tie the prohibition down to the particular circumstances listed in the new subsection. That would give the prohibition a precise meaning, while meeting the very particular point in the revised guideline that the Government object to.

As the noble Baroness, Lady Hamwee, mentioned, and the Constitution Committee’s report drew attention to, there are reasons to be concerned about the fact that the Bill is being fast-tracked. But the fact is that it is being fast-tracked, and I suggest that with it that brings a reluctance to accept amendments in this House which would require the Bill’s return to the other place. If that will be the position of the Minister, I very much regret it, because I hope he will listen very carefully when we reach Committee to ways in which, without undermining or destroying the Bill, we can improve the wording to make clear exactly what the prohibition is intended to do.

The point is that words matter—words always matter. It is the function of this House to address that point, which is why I gave the Minister notice of it in advance and why I am addressing it now, along with others with whom I respectfully agree. I hope that, in order to save time, if that is what the Government want to do, they will look at the wording of these provisions themselves and come up with an amendment of their own which meets the objection that I am raising. I look forward very much to hearing what the Minister has to say.