Sentencing Bill

Lord Jackson of Peterborough Excerpts

Monday 1st December 2025 Lords Chamber

Moved by

[Lord Jackson of Peterborough]

80: Before Clause 18, insert the following new Clause—
“Sentencing CouncilThe Sentencing Council of England and Wales is abolished.”

[Lord Jackson of Peterborough (Con)]

My Lords, I will also oppose Clauses 18 and 19 standing part of the Bill, and I oppose Amendments 81, 82 and 83 in the names of the noble and learned Lords, Lord Burnett of Maldon and Lord Thomas of Cwmgiedd, for reasons which I will allude to and develop later.

As your Lordships’ Committee will know, the Sentencing Council exceeded its powers earlier this year when it issued the Imposition of Community and Custodial Sentences guidelines, to come into effect on 1 April 2025, in respect of pre-sentence reports, which gave rise to complaints of two-tier justice. This was in respect of individuals from “ethnic, faith and cultural minority groups”. Of course, what we eventually had as a result of the dispute between the late chair of the Sentencing Council and the then Lord Chancellor was the Sentencing Guidelines (Pre-sentence Reports) Act 2025.

I do not propose to relitigate the issues around that legislation because it was primary legislation and there were comprehensive debates in both Houses about it, but it is important to remember that that is context for the debate and discussion on the efficacy and long-term future of the Sentencing Council. Noble Lords will know that that Act got Royal Assent on 20 June this year.

The background was that the Sentencing Council wilfully refused to amend its guidelines, despite being asked to do so by, effectively, this House and the other place, and the Executive and Parliament through the Lord Chancellor. As your Lordships will know, magistrates and the judiciary must follow such guidelines under Section 59 of the Sentencing Act 2020 and Section 120 of the Coroners and Justice Act 2009. The then Lord Chancellor correctly argued that the newly imposed guidelines represented differential treatment and two-tier justice.

The Sentencing Council is an independent non-departmental body sponsored by the Ministry of Justice, and it was created in 2009 and commenced its work in April 2010. As such, it is in the great scheme of things quite a new body—a successor respectively to the Sentencing Advisory Panel and the Sentencing Guidelines Council, both since abolished. The important point is that it is entirely the product of legislation, and that legislation could be repealed as easily as it was created. It was described by Professor Richard Bellamy in 2007 as an example of “political constitutionalism”, whereby the protection of minority rights undermines the protection of majority opinion, leading to its neglect.

The imbroglio over pre-sentence reports illustrates the fundamental issues at the heart of my amendment: judicial independence, and the role of Ministers and Parliament in sentencing policy. While the ability of the judiciary to set, and its role in setting, individual sentences—certainly prior to 1998—has been wide and permissive, Parliament has always had, and should have, a pre-eminent role, the upper limits when sentencing offenders being set through statute, such as Section 1 of the Sentencing Act 2020. That is something Parliament has always been jealous of in terms of its role in the sentencing framework.

Parliament should not involve itself in individual sentencing decisions—that is for trial judges, magistrates and appellate courts—but, quite rightly, it should and does, through Ministers, determine a broad sentencing policy framework. That is the delicate balance between democratic accountability and judicial independence, which the Sentencing Council upset and, frankly, transgressed. In supporting the new guidelines, the Sentencing Council violated the historic and fundamental principle at the heart of our judicial system: equality before the law. Commendably, and to her credit, the then Lord Chancellor—now the Home Secretary—made that point very strongly in the other place and throughout the passage of the legislation there.

The dispute last year pointed to another broader and wider phenomenon leading to a democratic deficit: the decisions of non-departmental public bodies and arm’s-length bodies lack legitimacy and proper accountability to elected Ministers and their electors and taxpayers. To quote the Times leader, which was cited in the other place by my honourable friend Sir Christopher Chope in March 2010,

“arm’s-length bodies … have often been favoured by ministers as a way of distancing themselves from contentious issues … Free of the need to answer to voters, ALBs can go rogue … in the face of public opposition”.

My honourable friend added:

“The Sentencing Council is not unique in being able to ignore the wishes of Ministers and Parliament”.—[Official Report, Commons, 14/3/25; col. 1452.]


I do not suppose that the Government will support this amendment, but they should certainly commit to ensuring that all further sentencing guidelines produced by the Sentencing Council be confirmed via order in Parliament prior to coming into effect. It should put beyond doubt that ethnicity, race, religion and membership of a “cultural minority” is no longer a factor in determining either a court sentence or pre-sentence reports.

Finally, the amendment focuses on not just the concerns of two-tier justice but democratic accountability, judicial activism, and the proper constitutional balance between the legislative and judicial branches. Fundamentally, we do not need the Sentencing Council. The Court of Appeal, prior to 1998, created judgments and authorities that established a body of case law refining some of the principles of sentencing, to give sentencing judges the ability to make those decisions. There was little or no evidence of sentencing inconsistency or lack of uniformity, of judicial independence being compromised, or of a lack of public support for or understanding of how sentencing works. For those reasons, I beg to move.

[Lord Burnett of Maldon (CB)]

My Lords, perhaps rather surprisingly, I find myself in agreement with the noble Lord, Lord Jackson, in seeking to remove Clause 18—but for polar opposite reasons. The noble Lord seeks to abolish the Sentencing Council; I wish to protect it from interference.

Abolition would be a retrograde step, which would undermine consistency in sentencing and destroy a structure that has evolved over 25 years. It has ensured that both sentences imposed and the impact of those sentences are properly informed by evidence, research and consultation, so I oppose the abolition of the Sentencing Council.

I shall explain why Clause 18, which requires the Sentencing Council to publish a business plan, over which the Lord Chancellor appears to be given control, should not stand part of the Bill. I shall also speak to Amendments 81 to 83 standing in my name, which seek to remove the veto that the Bill puts in the hands of the Lord Chancellor over the publication and introduction of sentencing guidelines.

First, I will spend a couple of minutes outlining the background to the Sentencing Council, to which the noble Lord, Lord Jackson, has made some reference already. The Sentencing Council was established by the Coroners and Justice Act 2009. The Act makes provision for 14 members, eight of whom are judicial, ranging from at least one Lord Justice to a magistrate, and six non-judicial, who must be drawn from those with experience of criminal cases in the courts, from policy, from those familiar with sentencing and the interests of victims, and from those who understand statistics and are involved in the academic study of sentencing and rehabilitation of offenders. The DPP, a senior police officer and a victims’ representative are members.

The Sentencing Council produces guidelines or amendments to guidelines in draft, having conducted extensive research. Those drafts are then consulted upon widely and, in particular, both the Justice Committee of the House of Commons and the Lord Chancellor are statutory consultees. Moreover, and importantly, the Lord Chancellor has a representative, who attends all meetings of the Sentencing Council and may speak at such meetings.

The Sentencing Council is, by statute, charged with monitoring the effect of guidelines in promoting consistency in sentencing and on public confidence. It must report on the effect of its guidelines on prison places and resources for probation. As the noble Lord, Lord Jackson, has noted, courts must follow guidelines unless it is in the interests of justice not to do so.

The Sentencing Council did not spring from nowhere; it was preceded by the Sentencing Guidelines Council, a creature of the Criminal Justice Act 2003. That produced guidelines to which the courts were required to have regard, but it was a much less sophisticated and less well-informed body than the Sentencing Council. Before that, the Sentencing Advisory Panel began work in 1999, and its function was to advise the Court of Appeal when it was considering producing a guideline case.

Before that, the Court of Appeal had no structured help from anywhere. The responsibility for producing guideline cases rested entirely with the Court of Appeal. In fact, they were relatively few and far between, so those who were sentencing offenders had to delve through a four-volume, loose-leaf work, which, from memory, was updated a couple of times a year. What followed was much better.

Clause 18 requires the Sentencing Council to submit a business plan to the Lord Chancellor for approval after the beginning of a financial year, setting out what guidelines it proposes to prepare and identifying its other activities. If the Lord Chancellor approves, the Sentencing Council would be required to publish the business case. At Second Reading I asked what this was all about—what its purpose was and what the consequences would be of a failure of the Lord Chancellor to approve. With respect to the Minister, there was no explanation forthcoming in his response at the end of the debate.

This provision, Clause 18, is, frankly, pointless. Failure to approve would not prevent the Sentencing Council doing what it planned to do. It looks like an attempt at a control mechanism of some sort—or at least a stick to wave over the Sentencing Council. The Sentencing Council is already under a statutory duty to publish an annual report on all its activities at the end of the financial year, with detailed statutory provisions of what must be contained within that report. With the greatest respect to the Government, if they are unable to come up with a coherent explanation, indeed any explanation, of what mischief this clause is designed to remedy and what its intended effect is, it really should not be in the Bill.

--- Later in debate ---

[Lord Lemos (Lab)]

That is precisely why we want to engage in further discussion to try to take some of that forward.

[Lord Jackson of Peterborough (Con)]

I assume that the Minister is indicating that I should withdraw my amendment. This has been a fascinating, fluent and well-argued debate. Obviously, I have been beset by a surfeit of eminent jurists this evening; they certainly gave the lie to the saying that lawyers are the only people in whom ignorance of the law is not punished.

The interesting thing is that, although I agree with the noble and learned Lords on the Clause 18 and Clause 19 stand part notices, that is a logical corollary of the fact that I wish to see the abolition of the Sentencing Council and therefore do not find myself coming from the same position. So I am an example of a “push-me pull-me”: I find myself agreeing with their objective but vehemently disagreeing with their rationale and reasoning.

I will quickly say two things. I slightly take issue with the noble and learned Lord, Lord Thomas, because it was not just a slightly irrelevant mix-up at the beginning of the year; it was quite a constitutional tempest. It is very unusual for the Government to bring forward emergency legislation, in effect, very quickly as a result of the behaviour or conduct of an arm’s-length body. Serious constitutional ramifications arose from those decisions. Obviously, the Government solved that matter with cross-party support.

I totally agree with the very astute point made by my noble and learned friend Lord Keen of Elie. There is a dichotomy at the heart of this Bill around the interference or otherwise of the Government and the imperatives they are giving to the judiciary. That needs to be resolved by the time this Bill gets Royal Assent.

With all those caveats being ventilated, and bearing in mind, as I predicted, that the Minister was very unlikely to agree with me, I will seek to withdraw my amendment.

I should also say that I of course meant the Times leader of March 2025 and not 2010, for the benefit of the official record; that was an error on my part. With that being said, I beg leave to withdraw my amendment.

Amendment 80 withdrawn.