Sentencing Bill

Lord Marks of Henley-on-Thames Excerpts

2nd reading
Wednesday 12th November 2025 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I start by expressing my sadness—along with that of so many others in the House—at the death of the noble Baroness, Lady Newlove, whose heartfelt commitment to and hard work for victims have been quite outstanding. I also thank the Minister for his opening, and his work on this Bill. It is a tribute to him that—with the enlightened and evidence-based backing of David Gauke and his team—he has had the courage to champion and introduce these reforms to sentencing, aimed at reducing reoffending.

The urgency of this Bill had indeed flowed from the prison-capacity crisis, which this Government inherited from the Conservative Government—whose responsibility, I am bound to say, was surprisingly not acknowledged by the noble Lord, Lord Sandhurst, in his criticisms of the Bill and his call for severity. The reality is that we imprison far too many people in this country, for far too long: many more than many other western European nations. There is no evidence of a reduction in reoffending rates as a result. As analysed by the noble and learned Lord, Lord Burnett, we have persisted in increasing sentence lengths by legislating both for longer overall sentences and for longer periods served, but also by a general sentence inflation, possibly in response to political, public and media pressure.

The noble Lords, Lord Bach and Lord Carter, and the noble Baroness, Lady Chakrabarti, captured this well in their critique of the regrettable toughness contest between political parties. The noble and learned Lord, Lord Thomas of Cwmgiedd, put it into historical context with his story of severe judges of the past now being seen as “softies”. The number of remand prisoners has increased, as the noble Lord, Lord Hastings, pointed out, and we have recently seen a record number of prisoners recalled for breach-of-release conditions: some 15% higher in the second quarter of this year than in the same quarter last year. The reality is that prison often does far more harm than good, and that is particularly true of short sentences. Where we can, we should be relying instead on effective and well-resourced community sentences, as the right reverend Prelate the Bishop of Gloucester argued in her principled speech, supported in large part by the noble Lord, Lord Hastings.

Many of our prisons have been bad at rehabilitation: underresourced, overcrowded and understaffed, with the toxic cocktail of failings rehearsed today and regularly in previous debates in this House, including too many prisoners in cells filled beyond capacity; prisoners locked in their cells, often for 22 to 23 hours per day, with very little purposeful activity. There is a shortage of vocational and educational training, and too few staff to manage the courses there are. An epidemic of drug abuse is fuelled by widespread drug trading often, sadly, involving corrupt staff. Prisoners, adults and young people, with serious mental health and addiction issues—as well as the literacy, educational and social difficulties discussed by the noble Baroness, Lady Longfield—find that those issues are all going unaddressed.

There is also appalling violence within our prisons. In June, the MoJ and Prison Service reported increases of 11% in assaults by prisoners on other prisoners and of 13% in assaults on staff over the last year alone, attributed in their report directly to overcrowding. There are persistently squalid conditions in many prisons with inadequate, cancelled or deferred maintenance programmes.

As my noble friend Lord Beith said, the criticisms we make do not apply to all prisons. Many of our prisons are of high quality, innovative and motivational, but a successful Prison Service would ensure that all institutions met those standards. In spite of all this, I accept the Minister’s overall characterisation of the commitment and performance of prison staff as incredible. But against a history and background of low morale, there are still too many who fall badly short of that characterisation, and their wrongdoing needs to be exposed and tackled.

The Bill recognises that reducing reoffending depends crucially on rehabilitation and on the Probation Service. It is worth remembering the massive cost of reoffending, estimated to account for more than half of the overall costs of crime in the UK—an annual cost of between £18 billion and more than £23 billion, even without the costs to the state of housing and social care for the families of offenders.

Central to the success of the Bill and the Government in their aims will be resourcing the Probation Service. The Government plan, as we have heard, to recruit 13,000 more probation officers by March next year and are allocating an additional £700 million to the Probation Service by 2028. However, we are seriously concerned that these figures do not add up, as my noble friend Lord Foster explained in detail—the noble Lord, Lord Bach, and others expressed the same doubts. Do the figures take into account three areas of extra costs arising from this Bill: more tagging; implementation of the presumption against immediate short sentences: and extra supervision of early releases on the earned progression model?

We welcome the presumption against short sentences. We have been calling for this for many years in the light of consistent evidence that such sentences increase rather than reduce reoffending. It is to be hoped that supervision of suspended sentences, together with conditions such as treatment conditions imposed by the courts, will lead to a targeted approach to rehabilitation and to addressing the individual difficulties of offenders in achieving rehabilitation within their communities, as described by the noble Baroness, Lady Porter. Suspension of sentences for three years rather than two should assist in this process. However, more suspended sentences should not, as the noble Baroness, Lady Prashar, argued, reduce the making of community orders where prison sentences are not warranted.

We also welcome the introduction of the earned progression model recommended by the Gauke review for standard determinate sentences. We recognise the perhaps surprisingly beneficial influence of the Texas model. This represents a logical, sensible and, above all, transparent approach to early release to replace the emergency and indiscriminate SDS40 arrangement. But, for the new system to work well and fairly, training and education in prison must be made more universally available. We would argue that there should be better rehabilitative programmes for prisoners on remand, as well as for sentenced prisoners, and we will introduce an amendment to that effect.

The introduction of a recorded finding of domestic abuse in the sentencing of a relevant offender is a reform for which my honourable friend Josh Babarinde campaigned in the House of Commons. This should enable victims and subsequent partners of domestic abusers to be better protected from past perpetrators. We also applaud the overdue recognition of the interests of victims as a factor in the purposes of sentencing.

On the question of the Sentencing Council, we fully agree with points widely made by my noble friend Lord Beith, the noble and learned Lord, Lord Burnett, the noble Baroness, Lady Chakrabarti, the noble Viscount, Lord Eccles, and others. We regard the Sentencing Council as performing a valuable and independent function in providing advice to sentencers. Nor do we see the Sentencing Council’s work as undermining the constitutional role of Parliament in sentencing policy, as the Bill and this debate so clearly demonstrate. We will seek to amend the proposal in Clause 19 to subject sentencing guidelines to a veto by the Lord Chief Justice—or Lady Chief Justice—and the Lord Chancellor, which is an unwarranted restriction on the independence of the Sentencing Council.

We have specific concerns about the recall provisions in Clause 29. Effectively, the Bill would introduce an automatic recall of 56 days for most prisoners recalled to prison. For less serious breaches, 56 days is a long time. As the noble Baroness, Lady Jones, pointed out, such recalls may cost offenders their accommodation or places on treatment programmes or the like. We will seek to amend this.

My noble friend Lord Beith mentioned our regret that the Bill does not commit to a resentencing of IPP prisoners. I agree with the tenor of speeches on IPPs from the noble Viscount, Lord Hailsham, the noble Lords, Lord Moylan, Lord Woodley and Lord Berkeley of Knighton, the noble Baroness, Lady Maclean, and others. The noble and learned Lord, Lord Thomas of Cwmgiedd, made the point of principle, and he added an important point on the cost of IPPs.

We also reject the notion of publicly shaming offenders undertaking unpaid work with names and photographs. It is vindictive and unhelpful—a point made by the noble Lord, Lord Hastings.

Overall, the Bill is overdue in putting rehabilitation and reform first, respecting the evidence on what works in reducing crime. Along with the right reverend Prelate the Bishop of Gloucester and others, we reject the Conservative Front Bench’s characterisation of these reforms as likely to increase crime and make the streets less safe. We stress, however, along with all those who have insisted in this debate, that the Bill’s success depends on providing the Probation Service with the support, personnel and resources that it needs. Ultimately, the potential savings to the public purse in reducing the cost of reoffending and the burgeoning costs of the Prison Service could, if realised, bring great net benefit to society, financial as well as social.

Sentencing Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Monday 1st December 2025 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I will speak very briefly. I thought the noble Lord, Lord Sandhurst, explained very well some of the reasons why this group of amendments is so important. I note, as somebody who is a fan of rehabilitation—although I quite like the rebranding that has just been suggested—that the truth of the matter is that what passes for rehabilitation, certainly in prison, is often shoddy, not available or not up to scratch. By the way, that is not a criticism of the people trying to deliver it. It is for all sorts of reasons.

I am very keen that we think hard about what kind of rehabilitation is being offered in the community. I just cannot see how, even with a pledge to invest £700 million more into probation services, the Government can deliver what is in the Bill. This is part of the problem I have with some of the suggestions around rehabilitating people via community sentences. I am worried that rehabilitation and community sentences will be discredited if this goes wrong. The amendments are trying very hard to ensure compliance and that sentences are completed, and that the victims and the whole of the community and society understand what they are trying to do. That is why these amendments are crucial.

I want to state very clearly that community sentences are criminal sentences. They are not supposed to be a soft option. They have to be taken as stringently and seriously as if you put somebody in prison. If somebody is put in prison and they escape—however that might occur—we think that they are trying to escape justice. My concern is that, if we do not have the resources, or do not keep our eyes on ensuring that community sentences happen properly, that is escaping justice. Therefore, it has to be taken very seriously.

I have some concerns about Amendment 52 in relation to mandatory “healthy relationships” courses. I have some cynicism that the way to solve the problem of violence against women and girls is through education. I have a certain dread of the kind of excuse being, “Well, you know, I committed that offence because I didn’t know that consent was needed. I wouldn’t have done the rape if I’d been sent on a good course”. I hesitate to say this, but some people are violent against women and girls because they despise women and girls: it is not a question of having sent them on a well-resourced course.

I have heard an awful lot of excuses in recent years from people who say, “I wouldn’t be a sex offender if only this had happened”. Well, you would not have been a sex offender if you had not committed the offence of sexual assault. So I do not want this to be an excuse for letting those largely male perpetrators off the hook.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, my noble friend Lady Hamwee has spoken to our amendment, which would require the Secretary of State to carry out an assessment of the potential benefits of mandatory healthy relationship rehabilitation programmes for offenders sentenced to offences against women and girls. We have heard the Minister talk many times about the Government’s target of halving violence against women and girls during the course of the Parliament. That is a target we completely support.

The area of relationship education is a difficult one, but we have evidence that education in healthy relationships helps to address unhealthy preconceptions and outdated—what some used to call “chauvinistic”—attitudes in young men. Sometimes those attitudes spill into offending, and my noble friend was entirely right to talk of harmful sexual behaviours. She also spoke about what young men in particular see and experience online, and how they take encouragement from that to do sometimes unspeakable things.

The question of rehabilitation for sentenced offenders is whether education would address this. I accept that making such programmes mandatory is not easy, but doing so would or might emphasise their importance. I hear the cynicism expressed by the noble Baroness, Lady Fox, about education for healthy relationships, but we have seen how relationship education in schools encourages healthier attitudes among pupils and greater understanding among young people of the concept of consent, as against the concepts of violence and force. I suggest that, for offenders who commit these offences, education would have the same beneficial effect, particularly if it is combined with a sentence for the offender, whether that is a custodial sentence or a community order. An assessment of that beneficial effect would be entirely beneficial.

In a sense, of course, this is a probing amendment, because we encourage the Government to make the position clear. We hope they will adopt the spirit of the amendment in any event, and that the Minister will commit the Government to undertaking such an assessment of the place of healthy relationship education, but we note that the amendment is also supported by the Opposition Front Bench.

I turn to the rest of the group. Amendments 53 to 55 and 57 would impose extra directions to the probation officers and impose burdens on them as regards the nature of the arrangements they make for rehabilitative activity and the flexibility they have in adjusting those activities.

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[Lord Sentamu (CB)]

My Lords, at the beginning of this second day in Committee, in which we have covered Amendments 51 and 52 and now this one, the noble Lord, Lord Foster, said that we can talk about doing all of this but it will all depend on whether there are resources to deliver real change.

In Yorkshire, I went to visit a pig farmer. He was very successful and the chair of governors of the local comprehensive school, where Ofsted was making a lot of demands, particularly about the testing of children. Everybody was into testing and examination, but the resources to deliver what was required were lacking. He said to me, “Come, and I will show you my pigs”. So we went to the farm and saw the pigs. He said, “Do you see them? Those are going to be sold in about six weeks’ time. What matters is not that every day I weigh the pigs to see whether they have arrived at the right weight. To fatten the pigs is not constantly to weigh them but to feed them”. That is what actually fattened the pigs, not the constant weighing. Transparency is important, but let us be very careful that we do not overburden the Probation Service by throwing at it a lot of things it needs to do and that we need to know whether it is doing them. What that did to the teachers, at the beginning of Ofsted, was to make them scapegoats to be blamed for a lack of proper resources and lack of constant training of teachers to be better teachers.

I hope that the Secretary of State will not be given so many burdens in things he has to produce before Parliament every year that our eye is taken off how we turn our Prison Service into a place where people really are rehabilitated, where those who want to learn are taught, and where reoffending begins to drop. We have to pay attention to that. I know that accountability and transparency are interesting, but we can become so obsessed that, in the end, people are given more and more burdens and take their eye off the job they are supposed to be doing. I urge a bit of caution, particularly about the Parole Board and what we mean by accountability and how we are going to get there.

I agree with the noble Baroness, Lady Fox, that certain things need not all hang out. There are certain things which require confidentiality, and, if we are not careful, we will begin to distrust the entire criminal justice system, because the public will feel unsafe and feel that more should be put in. We are all very keen on it, but how much volunteering time have we ourselves given to helping prisoners and the Prison Service, so that they begin to deliver better?

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will address briefly Amendment 58A in the name of my noble friend Lady Hamwee and my name. The amendment addresses the need for a report on the availability of activities and treatments for probation requirements. It goes hand in hand with Amendment 139B, in my name, which proposes reporting the levels of reoffending by offenders who have completed both custodial and community sentences.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, I appreciate that anything to discourage populism is a popular call in this House for some people. I just ask the noble Lord what the danger is apart from encouraging populism. When I put my name to that amendment, even though I did not speak on it in the end, some of the controversies around sentencing, crime, law and order, prison, and so on have been a failure to provide information. The noble Lord mentioned the grooming gangs, but the more information there is, the better. What is there to be frightened of? One does not have to draw the conclusion that any negative things will come from having more information. As these kinds of details have been hidden for so long, having them made available for the British public so that they can make their own decisions is something we should trust the British public with. The noble Lord is keen that we trust probation officers. I am keen that we also trust the public.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I too am keen that we should, generally speaking, trust the public. But Amendment 86 requires

“all offenders convicted and sentenced in the Crown Court or Magistrates’ courts”

to have their

“country of birth … nationality … ethnicity … immigration status, and … the offence(s) for which they were sentenced”

recorded, published and laid before Parliament. That could encourage the drawing of entirely the wrong conclusions by the British public.

[Lord Jackson of Peterborough (Con)]

I seem to recollect that the noble Lord’s party supported, for instance, the Lammy Review, which looked at sentencing and led, by a circuitous route, to the decision of the Sentencing Council to fall out somewhat spectacularly with the former Lord Chancellor. His party has also supported the use of quite detailed empirical data around stop and search, which is looked at through the prism of race and ethnicity. What is so different? Is there a particular kind of empirical data that he does not think that the public should be made aware of, or is he just saying that this a poor amendment for the sake of it? It seems to me that the rationale is that you collect as much data as possible, you have an evidence-led approach to the policy and then you can design the legislation in the appropriate way.

[Lord Marks of Henley-on-Thames (LD)]

I entirely agree with the noble Lord and the noble Baroness about the collection of data. What I am concerned about is the mandatory publication of all data, which risks being misused.

The noble Lord is quite right to suggest that my party supported Lammy. Indeed, I spent some time in this Chamber in debates on the sentencing guidelines Bill reminding the House of the Lammy Review on the inequality of outcomes based on ethnicity. That is quite different from saying that every single offence needs to be reported on and published, which can lead to unfortunate reporting.

Turning to Amendment 93B in the name of the noble Baroness, Lady Neville-Rolfe, like the noble Viscount, Lord Hogg, not only did I agree with almost every word she said, but I agreed with it profoundly in the sense of the benefits of participation in education, training and purposeful activity. I just have some concern about the use of the word “mandatory”.

In principle, all those things are sensible and beneficial for all the reasons that the noble Baroness gave. However, as we in this House know, many prisoners are struggling with addiction and mental health issues and some with problems of aging and illness. For those prisoners, the prospect of education, training, work and purposeful activity may be nugatory. I worry about too much use of “mandatory” in these contexts without consideration of all the effects. What is important, as it was in the last group when we considered probation, is flexibility and a personal approach so that offenders are dealt with having regard to their personal needs. That is an additional point to the one made by the noble Viscount, Lord Hogg, who talked about the availability of particular training opportunities—which were important as well.

On Amendment 127, I say yes to transparency of the Parole Board. Generally, the proceedings of the Parole Board should be public, should be heard and should be considered. Reporting of them is a good thing. I agree with the noble Baroness, Lady Fox, that there may be material that needs to be private. In these hearings, some discretion must be applied to enable the Parole Board to receive and take note of material that should not necessarily be made public. The hearing should make that decision. However, in general, the principle of transparency is one with which I and my party agree.

[Lord Young of Acton (Con)]

My Lords, I support Amendment 86, in the names of my noble friend Lord Jackson and the noble Baroness, Lady Fox of Buckley, and will respond briefly to some of the points that the noble Lord, Lord Marks, just made in opposing that amendment.

It might be relevant here to consider the interim guidance published by the National Police Chiefs’ Council on 13 August, following consultation with the Home Office and the Crown Prosecution Service, to encourage police forces to disclose the ethnicity and nationality, although not the immigration status, of suspects charged in high-profile cases. That interim guidance is currently the subject of a consultation being carried out by the College of Policing, which is trying to decide whether to make the guidance permanent or to withdraw it. The Runnymede Trust and other charities have written an open letter to the Home Secretary and the chair of the National Police Chiefs’ Council making many of the same arguments that the noble Lord, Lord Marks, made, opposing the interim guidance that publishing the ethnicity and nationality of suspects in serious high-profile criminal cases is dangerous, that it can lead people to draw the wrong conclusions and that it can fuel the rise of populist parties and so forth.

However, the reason for the introduction of this interim guidance was the speculation and misinformation about the suspect in the Southport attacks in the summer of 2024. The object of advising the police to publish information about ethnicity and nationality of suspects in high-profile criminal cases is precisely to avoid people speculating in that way and drawing the wrong conclusion, giving them the information to fill the vacuum that would otherwise be filled by speculation. The same arguments can be made in favour of Amendment 86. If the courts—

[Lord Marks of Henley-on-Thames (LD)]

I am sorry to interrupt the noble Lord, but I invite him to clarify whether his objection to what I was saying is restricted to high-profile criminal cases, to which he has referred, or does he support the amendment in so far as it covers every case in the Crown Court and every case in the magistrates’ courts?

[Lord Young of Acton (Con)]

I support the amendment and do not think it is excessive to require the publication of this data in every case. Would the noble Lord approve Amendment 86 if it was amended, whereby it was just information about convictions in high profile cases that the amendment was asking to be published? Is the noble Lord’s objection just to the extent of the information required to be published, or does he object to any information being published?

[Lord Marks of Henley-on-Thames (LD)]

The noble Lord sits down expecting a reply from me, and he will get one. It is that there is and ought to be a discretion about this sort of publication. To have a mandatory requirement for the recording of all information in every case—and it may be that it also goes to some high-profile cases—is to tie the hands of what is published in an unreasonable way. It may be that, in a lot of cases, publication is plainly in the public interest and should happen. I accept and agree that there should be the fullest possible recording, and then publication is a matter for the department.

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[Lord Sandhurst (Con)]

My Lords, I am grateful to all noble Lords who have tabled amendments and spoken on the topic of transparency. It is an important aspect of the criminal justice system that it is accountable and instils trust in the public, who rely on it.

Beginning with Amendment 58A in the name of the noble Baroness, Lady Hamwee, we on these Benches broadly support the aim of this measure. Knowing the affordability and accessibility of treatments and activities is an important part of ensuring that the probation system is working. Such matters are vital to persons on probation, and they can make a real contribution to those who complete their probation periods. Regional inequalities should be known and addressed, so that all who are subject to such orders have the same means with which to complete their sentence. That may be an ideal, but it is what we should be aiming for.

I offer support from these Benches for the amendments in the name of my noble friend Lord Jackson of Peterborough. There may indeed be real practical issues and objections, as the noble and learned Lord, Lord Burnett, has reminded us of, with all his experience. He is right to draw our attention to the practical difficulties in identifying and recording ethnicity and other information—that may well be for another day. That is a fundamental objection; none the less, we would argue that the Government should certainly be looking at what information can be sensibly obtained in this area.

I was somewhat surprised to hear the noble Lord, Lord Marks, say “yes” to the collection of data in principle but “no” to its publication. That is what I think he said. Who will see it, then? Just civil servants and Ministers? Not Members of Parliament? Not Members of this House? If collected, it will certainly leak. Maybe I misunderstood him.

[Lord Marks of Henley-on-Thames (LD)]

I think the noble Lord did misunderstand me. I did not oppose publication in any broad way; I simply said it was a matter of discretion as to what should be published and what should be kept private. The issue of universal publication is the danger that I expressed. It is a matter of discretion, relevance and importance, and those are decisions to be taken by those who collect the information.

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[Lord Marks of Henley-on-Thames (LD)]

Amendment 60 in the name of my noble friend Lady Hamwee would make it clear that a public event attendance prohibition requirement would not be available if its enforcement was not reasonably practicable. I share the doubts of my noble friend on practicability. Indeed, the widest orders in this category—that is, prohibiting attendance at any public event rather than particular events—may generally be too wide in any case, because it is going to be very difficult to define a “public event”.

Moving to a more general point, one of the difficulties with the restrictions in this group is the difficulty not just with practicability but with enforcement, spoken to in the last group by the noble Baroness, Lady Fox. The noble Viscount, Lord Hailsham, foresaw difficulties in determining practicability, which he thought might be fatal to these conditions. I can see his point that there are difficulties. The question for the Committee in considering whether these conditions ought to be permitted is to see how far they would in practice be imposed if not practicable, and then to consider the question of practicability.

I suggest that the answer to the difficulties is a combination of the justification points relating to community orders, if I can put it that way, and the enforcement possibilities offered by new technology and intelligence. As far as intelligence is concerned, I take the point made by the noble Lord, Lord Jackson, that it is pretty easy to find out where the pubs are. But there are other difficulties of intelligence which new technology and intelligence-gathering techniques might be needed to address.

However, when I talk about justification, it is right that we should remind ourselves that the conditions are intended to augment community orders and suspended sentences, and those sentences are intended to be, in part at least, punishment, no differently from a curfew order or a residence requirement. They are in part, therefore, punitive. However, the alternative may be custody, which is a far more serious punishment, and one that with the best will in the world offers a substantially reduced chance of the offender having the opportunity to undertake any rehabilitative activity at all.

The other point is new technology and intelligence techniques. Noble Lords have mentioned electronic monitoring, as well as alcohol monitoring and other devices, but electronic monitoring using tagging is a considerable part of the answer. Although I have some sympathy with the noble Baroness, Lady Fox, on the civil liberties implications of these conditions, monitoring by tagging is no different from monitoring by curfew or by a residence requirement, which we have had for a very great deal of time, but the new technology enables a more flexible and wider approach to conditions. However, I remind the noble Baroness, Lady Fox, that civil liberties are restricted at their very worst by imposing sentences of immediate imprisonment where people are in custody.

Amendment 106 in my name would allow exemptions or variations by probation officers to allow a person to attend employment, education or rehabilitation programmes, but those exemptions or variations would be exceptions to the imposition of the restriction zone condition. The amendment also requires a report on the operation of restriction zone conditions.

The purpose of this amendment in each of its sub-clauses is to enable both the courts when imposing conditions and probation professionals to weigh in the balance, on the one hand, the extra security and the protection of victims or potential victims which may be offered by the imposition of a restriction zone condition, against on the other the desirability of encouraging offenders to benefit from opportunities of employment, education or rehabilitative activity. It is a classic balancing exercise of a type that is undertaken every day by members of the public and professionals in daily life when they consider questions of risk against opportunity, and that is really what we are talking about here. The point is that our amendment does not come down exclusively on one side or the other. The idea of it is to enable the imposition of these restriction zone conditions, not to conflict with the provision of educational or other opportunities. So, the condition could still be made, but subject to those exemptions or restrictions, which will permit the desirable activity.

The noble Lord, Lord Jackson, supporting my noble friend Lady Hamwee in her amendment, said that it was unfair to oblige venues and others to police these conditions, and of course I see that. But these conditions are not perfect, they will not be perfectly enforceable, and they will not be completely practicable in the sense that they will always prevent the restricted activity. However, for the most part, in practice, offenders are likely to observe these conditions simply because they are there, and for fear of being caught and punished for their breach.

Questions of affordability were raised, and of course more resources are going to be needed to police and enforce these conditions, but those costs have to be measured against the costs of custody.

The noble Baroness, Lady Prashar, raised an interesting point with her amendment when she suggested that the Parole Board should have oversight of restriction zones. For my part, I am not quite sure how that will work—it seems an onerous obligation on the Parole Board—but I take her point that there should be some oversight of restriction zones. In a general sense, that could be undertaken by the Sentencing Council in considering sentencing guidelines to judges on how they are to be imposed, and by training of probation officers in how they are to be implemented.

On electronic monitoring, of which the noble Baroness, Lady Fox, spoke, if it is proportionate and appropriate and is subject to restrictions that are decided upon to ensure that it is, then, broadly speaking, I agree with her points.

[Lord Keen of Elie (Con)]

My Lords, I will begin by speaking to the probing amendments tabled by my noble friend Lord Jackson of Peterborough. In doing so, I am sure I will reflect the concerns already expressed in other parts of the Committee about these provisions in the Bill.

It has already been made clear that we on these Benches do not in principle oppose the idea of giving courts new tools to protect the public. These are tools that might, if properly designed and enforced, help to manage some offenders in the community rather than defaulting to custody, and we support that aim. But Clauses 14 and 15 do little more than say that courts now have these powers. The Government have provided little, if any, detail as to how these powers will be enforced. A ban that cannot be enforced is a false promise and, indeed, as a consequence, a danger to public confidence.

The Government want this House to support the expansion of suspended sentences and community-based orders. Yet to support them in this effort, they are asking us to sign off on a national regime of pub, club, concert and public event bans, without explaining how these will function on the ground. There is no credible enforcement plan. Are we seriously proposing that every pub, bar, off-licence and concert venue across the country becomes a mini probation checkpoint? Do we expect landlords, doormen, waiters and bar staff to act as de facto probation officers, verifying the identity of every customer against confidential court orders? The result would be unacceptable. If such pub bans become unenforceable and are reduced to a tick-box exercise in sentencing documents while nothing on the ground actually changes, the sanction will become meaningless. That would not be an improvement in justice.

The burden that such a regime would place on the hospitality and nightlife sector would be considerable. Pubs and nightlife venues are already under severe financial and structural pressure, as we know from various reports from the Night Time Industries Association. As a consequence of the national insurance increases, further tax pressures and red tape imposed on these venues by the Government, some 209 pubs—an average of eight a week—have closed permanently and many more continue to struggle. It is simply unrealistic, never mind unfair, to add to this burden by requiring them to police court-imposed bans on individuals under threat of legal liability.

The Government may argue that the burden of enforcement will not lie on public events or drinking establishments, but, in that case, they must lay out in detail how they plan on enforcing these orders with a Probation Service that, as everyone would accept, is already under severe strain. Simply saying that they have additional funding is not enough. We require specifics if we are to trust that the Government can cope with the pressures of managing offenders in the community. If the Government cannot explain clearly how these bans will be notified, enforced or policed, how can this House responsibly vote for this provision? We on these Benches must ask: on what basis are we expected to vote to expand suspended sentences for a broad group of offenders, if we cannot be satisfied that community supervision will actually work and without the most basic detail on banning access to pubs or events?

The amendments offer a simple test. They would require the Government, before we hand out sweeping powers to courts, to set out a clear, practical enforcement regime. They demand a reasonable amount of certainty. Who will be notified: pubs, events, promoters, the police? What will happen when an offender is banned from public events or drinking establishments? How will these bans be communicated? How will they be recorded? How will they be checked? What enforcement mechanisms will be used if an offender breaches the ban? Who will bear the cost and responsibility of monitoring: the state, the Probation Service or venues? If the Government cannot provide that clarity, these provisions risk being no more than symbolic restrictions. They will simply result in theatrical sentencing with no real-world effect, and that, in turn, will undermine public confidence and public safety.

The choice is not between doing nothing and embracing these sweeping new powers; it is between legislation grounded in operational reality and legislation built on aspiration and illusion. These amendments do not oppose the idea of community-based orders; they demand that, if we are to entrust courts and probation with greater powers, those powers must be backed by a robust, enforceable system and not simply by faith. We owe that to the victims of crime, to the public, and to the men and women who work in establishments such as pubs and other public venues.

The noble Baroness, Lady Hamwee, moved her Amendment 60, which is intended to probe the enforceability of public event attendance prohibition requirements, which points to another important question that is central to the debate on these orders. The noble Lord, Lord Marks, spoke to his Amendment 106, which would allow for exemptions to restriction zone conditions, such as to allow a person to attend employment, education or rehabilitation programmes. I would have thought that these would be included in the specified restriction zone, but I look forward to the Government’s response on these points.

On the part of the amendment that requires an annual report on the orders’ use and effectiveness, we on these Benches support the underlying sentiment. Without the requisite evidence, we cannot be sure that the provisions in the Bill are working or will work. We therefore fully support the amendments in the name of my noble friend Lord Jackson. We look forward to hearing the Minister’s response to these important probing amendments.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, before the Minister responds, I will make two apologies. The first is to the noble Viscount, Lord Hailsham; my noble friend Lady Hamwee tells me that I referred to him twice as the “noble Viscount, Lord Hogg”. The second is to my noble friend Lord Foster, because I referred to the points that he made on electronic monitoring as having been made by the noble Baroness, Lady Fox. I apologise to them both.

[Baroness Fox of Buckley (Non-Afl)]

I will join the trend. I apologise to the noble Lord, Lord Sandhurst, for calling him “Lord Sanderson” in my enthusiasm to agree with him. Misnaming is almost as bad as misgendering, but I hope he will let me off. I was glad to take credit for the very important points made by the noble Lord, Lord Foster, about electronic tagging, because I agree with him.

I want to query the Minister now, rather than interrupting him later, about this group. There is something I do not understand. The group is focused largely on enforceability, yet in the previous group, the Minister claimed that these kinds of prohibitions were part of the punishment. He is right to suggest that these are punishments for those people—they are not in prison, but they are still being punished. But I do not find it easy to understand how these orders punish the individuals. Are they related to the crimes they committed? The example that the Minister gave earlier was that, as part of the punishment, someone will be prevented from going to a particular football match. I understand that, if someone supports Liverpool, it might be a punishment to watch them at the moment, never mind anything else.

How do the punishments get decided? There was the example that the noble Lord, Lord Foster, gave of the potential downside of saying that we will have a curfew and someone cannot attend their Gamblers Anonymous meeting. Also, if we are going to say that, as part of the punishment, someone cannot go to public gatherings, who decides which public gatherings are included? Some public gatherings are obviously morally good for people. Do we not want them to go to a political public gathering?

Can the Minister just clarify how it is decided which person in the community gets one of these orders and who makes a decision about who should be banned from a pub, football match, public gathering, political gathering or what have you?

Sentencing Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Monday 1st December 2025 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I have added my name to the amendment in the name of my noble and learned friend Lord Burnett of Maldon and the proposition in the name of the noble Lord, Lord Jackson of Peterborough, that Clause 18 should not stand part of the Bill. I have done so because it is important that we see this as a constitutional issue.

It is necessary to go back to the achievement of the last Labour Government. Some still mourn the loss of the position of Lord Chancellor, and tonight is not a time to go into why there had to be change. It is important to go back to those times to see what the abolition of the office of Lord Chancellor entailed. In many respects, he—and it was a he, save in the case of Matilda the Queen—acted as the linchpin, a person who could bring together the judiciary, Parliament and the Executive. When that linchpin was taken away, it became necessary to look for a mechanism through which the three separate branches of the state, each with their own independent position, could act and work together reflecting what is inevitable in a state—their interdependence.

Out of the change that was made—which was somewhat hurried, if I recall correctly—there was born a series of mechanisms to balance the constitution. There was the concordat agreed, which dealt with problems such as the appointment of leadership judges, which was a joint and shared responsibility of the Lord Chancellor and the Lord Chief Justice. There was then the need to look again at the way the rule committees worked, because sometimes one forgets how vitally important it is that the rules work well, that Parliament has its input and that the judiciary and all those other interested parties have their input in producing rules of procedure that work. When you talk to people in other countries, you see what a huge advantage we have here. I mention these examples—and there are many other instances, which I will not weary your Lordships with at this hour of the night—that reflect what is, I feel, the spirit that was created by the previous Labour Government, which endured very well under the Conservative Government, but which is now being undermined by the particular changes being made here.

My noble and learned friend Lord Burnett and the noble Lord, Lord Jackson, have both explained how the Sentencing Council evolved, and I do not think it is necessary to go over that ground again. But it is necessary to say that the Sentencing Council was born in the spirit of needing to create the interdependent relationships between the three branches of government. The great thing about all the reforms that were made is that, by and large, they have worked. Of course, when you have three different bodies, there are bound to be hiccups, and there was a hiccup earlier this year. But one has to look and see what the achievement was and how it worked.

What the Sentencing Council did was to bring together the respective responsibilities. Parliament’s responsibility is setting the framework. Generally speaking, until we had the clauses that we discussed examples of earlier in Committee and which are of a completely unnecessary complexity, Parliament’s function normally was to set the broad brush of sentencing policy; unfortunately, it has gone away from that, much to everyone’s cost. The judiciary then pass the sentences, though they previously had, as the noble Lord, Lord Jackson, and my noble and learned friend Lord Burnett explained, issued guideline cases to achieve consistency. Then the Executive are involved because after all, they have to find the money to deal with the punishments, and they have to administer the system. So, it is necessary to have the input of all three if the sentencing framework is to be set by Parliament, the judges are to do their job and the prisons and penal system are to work as intended. In balancing those three interests, it was essential to have an independent council that could bring everyone together.

The great success of this is that it has worked. Now, why did it work? Why was it successful? Well, I recall, it must have been in 2009 that the then Lord Chancellor, Mr Straw, and the then Lord Chief Justice, Lord Judge, working no doubt at about this hour of the night, if I recall it correctly, in their shirt sleeves, were looking at the detailed clauses and agreeing the composition of the council—it went to that level of detail at the highest level. The compromise was made, and a successful institution was created; and successful it has been because it had virtually completed producing the guidelines by the time of the row that occurred earlier this year.

I would simply say that the idea of a constitutional settlement, carefully worked out in the spirit that was born in our renewed constitution in 2005 and in the actions taken in 2009, is the way in which we should do things if they are to result in success. Now, there was the hiccup earlier this year—I do think it is probably right to call it a hiccup, as it really was not much more than that if one looks at it and stands back. It is a pity it could not have been resolved there and then, but it cannot be any excuse for altering the delicate mechanism created by the previous Labour Government. There is no justification for it whatsoever.

It seems to me that there are two points. First, Clause 18 ought not to stand part of the Bill: it seems an absurd thing to say that the plan of an independent body has to be decided by one of the three parties that is involved. It would be a good idea, maybe, if all three were involved in looking at the plan, but why one of them? It makes no sense, and it tears up the carefully agreed compromise that was struck. Secondly, it would be much better if Clause 19 did not stand part of the Bill, because that is another aspect of this Government’s desire to tear up, for wholly unnecessary reasons, a proper compromise made by their predecessors in 2009.

However, I agree with my noble and learned friend Lord Burnett that we should go along in the spirit of compromise, but I regard that as a compromise, and it is one that I would hope the Government would accede to, and not pursue the destruction—because that is what it is—of the careful balance worked out by the late Lord Judge and by Mr Straw.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I oppose Clause 18 and Clause 19, and my preference is, quite definitely, for both clauses to be removed from the Bill. I have not signed the opposition by the noble Lord, Lord Jackson, to Clause 18 standing part, because his reasoning is rather different from mine, but Clause 18 is, frankly, very strange. It is certainly pointless, just as the noble and learned Lord, Lord Burnett of Maldon, said, but it is also, with the greatest of respect to the Government and the drafters of the clause, legislatively illiterate.

I can see no reason in practice for the Sentencing Council to submit a business plan to the Lord Chancellor for approval as soon as possible after the beginning of the year—one wonders when that is supposed to be. But if there is to be a business plan, it is a strange imposition of a new duty on the Sentencing Council that it must declare in advance what it proposes to study, research and support during the course of the coming year without knowing what is coming down the track during the course of the coming year.

In any event, a business plan is pre-eminently a document for the body that is responsible for it and producing it itself to decide in its own discretion and to determine what it puts into it. Clause 18 demonstrates a serious lack of trust in the Sentencing Council to manage its business. Why should the Sentencing Council submit any business plan for approval by the Lord Chancellor, a member of the Government—with, certainly, an input into the Sentencing Council, but not a decisive or determining input?

Is it suggested that the Sentencing Council would not be entitled to consider other matters in the year, unforeseen at the beginning of the year, if they were not in the business plan? If that is not so suggested, what is the point of the business plan? It does not delineate the responsibilities that the Sentencing Council will carry out.

The clause represents an attack on the independence of the Sentencing Council. We have heard from both noble and learned Lords that it was set up by statute to be an independent body tasked with advising sentencing judges on the principles they should apply to sentencing—within the terms of the law as provided by Parliament in statute and the common law, of course, but independent in its advice to judges.