Sentencing Bill

Lord Keen of Elie Excerpts

Wednesday 12th November 2025 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, I begin by paying my tribute to the late Baroness Newlove, not only for her contribution to this House but for the considerable work she did as Victims’ Commissioner. I also thank the Minister for his introduction of the Bill, and all noble Lords for the detailed, informed and sometimes diverse opinions that they have expressed.

The importance of this debate is underlined by the fact that the Bill received so little scrutiny in the other place. It was in Committee for one day. For a Bill so substantial and with such wide ramifications, that seems wholly inadequate. Indeed, it meant that many of the radical changes proposed in it were never even mentioned in the other place, let alone discussed or debated. It is essential that we have the opportunity to examine the Bill carefully and, in some respects, forensically.

I will make a number of general observations. Is this simply an attempt to tackle overcrowding in our prison estate? I certainly hope not, yet there was no mandate for these reforms in Labour’s manifesto. There was a reference to sentencing:

“Even when criminals are found guilty, the sentences they receive often do not make sense either to victims or the wider public”.


Will this Bill improve the complexity but not the comprehension of sentencing? I fear that might be the case. As the noble and learned Lord, Lord Thomas of Cwmgiedd, observed, the public must be able to comprehend that disposals such as community sentences are not only effective but a form of punishment. It will be important to explain that early release is in the public interest and not just a fiscal necessity. How is that to be done?

As a matter of generality, I also have a degree of concern about the clarity of the proposed reforms and powers that are to be implemented. I make particular reference to Clauses 13 to 16 and Clause 24, which introduce powers for the courts to forbid offenders to enter drinking establishments and attend sports and other public events, as well as to inhibit them from driving and even from leaving specified geographical areas. It is simply not clear in the Bill how any or all these measures would be implemented or enforced. A number of questions arise. How is that to be done? Where will the funding come from? On whose shoulders will enforcement lie? Will it be the responsibility of public houses and those in control of sporting and other public venues? Will they be required to ensure that their own customers are not under court orders? This will require meaningful and effective reform, and, in turn, it will require a meaningful and effective debate so that we can understand how these provisions will work in practice.

Then there is the role of the courts. The Bill leaves the Government’s stance on this somewhat unclear. Clauses 11 and 12 deal with rehabilitation activity requirements. They provide that probation officers, rather than the sentencing courts, will decide on, for example, the number of days of activity in a community order that someone must complete. That means that probation officers will, in effect, replace the courts in the imposition of sentences on those on community orders. That transfers a crucial power, and indeed an important role, from the courts to the Probation Service—a point to which I will return. Again, we require a degree of clarity on that.

Furthermore, the Bill appears to blur the Government’s stance on the relationship between the courts and the Executive, a point addressed by the noble and learned Lord, Lord Burnett of Maldon, when he referred to the provision in Clause 19 for a statutory requirement for the Sentencing Council to obtain approval from the Lord Chancellor before sentencing guidelines are issued. This implies that the Government believe there should be a close relationship between the Executive and the judiciary on the issue of sentencing, and yet, when concerns were expressed about sentencing for offences such as fly-tipping, shoplifting and knife crime during a recent debate on the Crime and Policing Bill, the Government’s response was:

“sentencing in individual cases is a matter for our independent judiciary”.—[Official Report, Commons, 3/4/25; col. 211.]

Is it, and will it be, under the provisions of this Bill? More particularly, how are we to consider the provisions in Clause 18 with respect to the apparent veto? As the noble and learned Lord, Lord Burnett of Maldon, again pointed out, it is somewhat opaque in its provisions.

Turning to some more specific issues, we have the end of short-term custodial sentences and the introduction or development of early release. All of these may, in principle, be attractive, but under Clauses 1 and 2, for example, there will be a presumption that custodial sentences of 12 months or less will be suspended except in limited circumstances, such as breaches of protection orders. Does that mean that, for example, where someone pleads guilty at the first opportunity and gets a remission in their sentence, someone who would have received a sentence of 18 months but is to receive a sentence of 12 months will find themselves with a suspended sentence? In other words, does this presumption apply not only in respect of custodial sentences of 12 months but those up to 18 months? I would welcome the Minister’s response on that.

It is estimated that the implementation of these provisions would mean that about 40,000 criminals would avoid prison entirely. But for what? The purpose of sentencing is not purely punitive but to protect the public from repeat and violent offenders. As many noble Lords observed, rehabilitation and community orders are essentially resource-based. The noble Lord, Lord Foster of Bath, put the matter very pithily when he said you need the means to achieve the ends. Is the Minister confident that this Bill is going to provide the means to the end? I bear in mind the way in which the Treasury often regards the Ministry of Justice and its role as one of the orphaned children of government; there is a considerable barrier for the Minister to overcome in that respect.

On early release, Clause 20 will reduce it to one-third of the original sentence. I acknowledge that, if we go back to 1967, there were similar provisions in place, albeit that the test was significantly different to the one proposed in this Bill. If we have such early release, how are we going to accommodate the police estimate that this could lead to a 6% increase in overall crime, or approximately an additional 396,000 offences per year, the vast majority of which will involve reoffending by those who have been released from prison?

We are liable to find ourselves in a cycle of release and recall unless we are very careful. The noble Lord, Lord Hastings of Scarisbrick, made clear why that cycle can be broken only by effective rehabilitation. Again, I repeat the observation of the noble Lord, Lord Foster of Bath: you need the means to achieve the ends. Where are the means? Can that be explained?

I am also concerned that the Government’s messaging may be somewhat inconsistent. The Government recently expressed outrage that criminals such as Hadush Kebatu were at large on the streets, and yet, under this Bill, offenders of his type who received a 12-month sentence would be at large on the streets. Could the Government clarify whether they are genuinely committed to including those convicted of such offences in this scheme? It seems that their position is that the community is capable of accommodating such offenders, but it can possibly accommodate them only if effective probation services are in place. Again, it is a case of requiring the means to achieve the ends.

There is also a risk that this Bill simply sends the wrong message to repeat offenders. The presumption against short custodial sentences may appear to have merit, but it removes a vital deterrent to repeat offending, particularly in low-level crimes, anti-social behaviour, theft—particularly retail theft—domestic violence and other cases of stalking and harassment. Such so-called minor crimes are very often the precursors to more serious offending. So short sentences can play an important role as an intervention and a deterrent against that sort of persistent and repeat offending. Has that been properly taken into account when considering the use of non-custodial or suspended sentences in so many of those cases?

There is a risk that we are sending the wrong message to repeat offenders. Indeed, as one noble Lord observed, we may also be sending the wrong message to very young offenders, who may believe that the future holds no risk of imprisonment if they engage in what is regarded as, or what they are persuaded to believe is, low-level criminality.

I suggest that the Bill might involve potential overreach for the Probation Service itself, and will certainly place considerable burdens on that service. Clauses 1 and 2 deal with short custodial sentences being replaced by non-custodial sentences, and Clauses 20 to 23 deal with early release, all of which will increase the burden on the Probation Service. But then Clauses 11 and 12, with respect to rehabilitation, will require probation officers to sentence offenders to the number of days they must complete. Clause 34 will enable probation officers to reduce the amount of unpaid work that an offender must complete.

I will come back to these provisions in a moment, but all these clauses require officers to manage, supervise and monitor a very large number of offenders, who will have avoided custody or have been released early under the Bill. There are, of course, provisions for the probation reset to help or assist the struggling Probation Service, but, when we look at the financial impact assessment, it could at best be described as opaque. We are told that in some instances there will be a modest increase in the cost of services and that the remainder has not been calculated. But probation officers will be expected to take on these new tasks, and a question arises as to whether they will be equipped financially, apart from anything else, to take them on.

But there is also a perhaps more fundamental constitutional issue to be considered here. If probation officers will take on these judicial-type responsibilities, which are being transferred potentially without corresponding investment in training or supervision, where will that lead us? Unlike sentencing decisions taken in open court, these apparently administrative terminations will occur without transparency, oversight or, it would appear, any form of appeal mechanism. The Government have not provided any mechanism to ensure that these decisions are monitored, audited or even transparently reported. I pick up the point made by the noble Lord, Lord Hastings of Scarisbrick, about there being room for very material error where you impose these obligations on staff who are potentially underresourced, undertrained and unable to determine with any certainty how they will perform these new functions, which are to be regarded as at least quasi-judicial functions. That represents a major constitutional shift in the balance of responsibility between the judiciary and the Executive. Has the Minister thought that through and considered the operational pressures that this will actually impose on the Probation Service?

Finally, and very briefly—with apologies for being over time—I acknowledge the point about IPP sentences. As a matter of principle, they cannot be maintained. The onus placed on this small cohort is placed on no other prisoner in the prison estate, and they will struggle time and again to overcome it, because we have now reduced that cohort to perhaps the least able to meet the requirements presently placed on them with regard to how they are to be dealt with when they come to seek release. I do not offer a solution to that—I am well aware that the need for a solution has dogged Government after Government—but we cannot wait another eight years to see this play out and I invite the Minister to consider seriously whether this matter should be addressed in the Bill.