Sentencing Bill

Viscount Hailsham Excerpts

Wednesday 26th November 2025 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, if I might, I will make a brief comment. I have a lot of sympathy with what the noble Baroness has just said. I share many of the reservations expressed by the noble and learned Lord, Lord Keen, but I wonder whether trying to identify a whole range of offences that fall outside the suspended sentence regime is helpful. It raises the question of what has not been included. My own feeling is that if we could get some generic language which encapsulates the thinking expressed by my noble and learned friend, we would be doing well, rather than to have a list of offences, which runs the risk of omitting others and perhaps including some that we should not.

[Lord Hogan-Howe (CB)]

I understand why we have all got a problem with the size of the prison population. Generally, we could be safer if there were fewer people in prison. Many of them have probably been there too long and not had an awful lot done to help them. But as I have tried to understand the Government’s proposals and public spending generally, I have a growing concern about how they might be improved.

The proposals rely on the fact that, as people are released early or do not go to prison, they are tagged. I generally agree with tagging and think that we could do far more with it. At the moment, we do not do much with geofencing, with which we can stop a person going where a victim of domestic violence might be. There is sobriety tagging—where alcohol is the cause of somebody’s offending, you can check whether they are abiding by a court order not to drink or not to take drugs. These are positive developments. I am told that about 30% of the people leaving prison who should be tagged are not getting tagged because of administrative issues. That is a significant number of those who are leaving prison who should have some form of restraint or monitoring. If that is not happening, it needs to be sorted before we start allowing people out at a quicker rate.

The other opportunity with tagging which we are not currently taking—Ministers have been kind enough to find some time to talk with me about this—is how we might proactively use it better in the future. The data that comes from the tags goes to the commercial operators of the tagging system. I am not sure whether it is G4S, but it is a commercial operator. I have no problem with that. The problem is that the data goes into its control room and the police do not see it. It tells us where the offenders are; we might be able to check, for example, whether there is a rapist nearby to a rape or a burglar nearby to a burglary—real-time data sharing. At the moment, that is not happening, but it is an opportunity that could be taken with this new experiment. It would not take an awful lot of investment or time to get this running.

Further, as one or two people have said already, we could probably have fewer short sentences on the whole but I am not sure that they should be removed, as it appears the assumption is here, from the armoury of the judge. The particular group I would consider are those repeat offenders who commit low-level offending, but if you live next door to them it is not very good. Such cases are perceived as minor cases, but they often impact on their neighbours and the community where they live—they do not impact on people who live 20 miles away. The opportunity for a judge to intervene in those cases ought to remain. I worry that, with the assumption based on the Government’s proposal, that group, for example, would not get caught.

I agree with the noble Viscount, Lord Hailsham, that the list offered by the Opposition is entirely the right one. It would force the Government to address what should be on the list, or, if not a list, what should be the principle to guide such action by a judge. I worry that, at the moment, judges may feel constrained not to give short sentences in circumstances where they are the only method. It is no good giving a fine to somebody who has repeatedly been given fines and does not pay them, as an example. I think we need to retain that in the armoury.

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[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.

[Viscount Hailsham (Con)]

Is this not a case for the Sentencing Council to express some guidance on these matters rather than go down the route of the list system in a statutory form?

[Baroness Chakrabarti (Lab)]

I find myself back in the comfortable spot where I agree with the noble Viscount, Lord Hailsham. Of course, that is something that we will come to later, no doubt, when we discuss the independence and the constitutional role of the Sentencing Council. If noble Lords are worried that I am being too glib, because “exceptional circumstances” seems too vague an alternative to a prescriptive list of offences which are exceptional, the answer is, on the one hand, to trust the judges—this is about their discretion, and they know jolly well about the awful case that the noble Lord, Lord Hogan-Howe, mentioned, and about situations where people are repeatedly not paying their fines or breaching community orders, which should be exceptions to the 12-month presumption.

The second part of the argument is that the judicial limb of our constitution has in the form of its Sentencing Council—and I use that language deliberately because I am for the independence of the Sentencing Council—a council to help guide judges so that there can be an element of consistency in courts around the country as to the approach on what is exceptional, and therefore what type of case justifies the exception to the presumption and the philosophy of this measure that short sentences are a bad idea.

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[Lord Sandhurst (Con)]

My Lords, His Majesty’s Opposition have made no secret of our profound reservations about the sweeping presumption in favour of suspended sentences. We fear that it risks sending entirely the wrong signal about the seriousness of offending and will undermine public confidence and place additional strain on already overstretched probation services. Yet, if the Government are to insist on pressing ahead with this presumption, it is incumbent upon us to ensure that public protection, good order and the prospects for genuine rehabilitation are at least properly safeguarded. That is the purpose of the amendment.

Amendment 35 would require that, where a court imposed a suspended sentence order, at least one meaningful rehabilitative or support-based requirement should be attached, whether that be engagement with NHS mental health services, substance misuse treatment, accredited offending behaviour programmes or structured education, training or employment support. The intention is clear: a suspended sentence must be more than a paper exercise; it must be a tool to reduce reoffending.

The Committee will have noticed that the list of activities is rather broad. The intention here is to permit the court to use its discretion as to which activity the offender is required to undertake. The activity or service would depend upon the particulars of the case before the court and the offender’s personal circumstances. If the offender had a history of alcoholism and their offending was related to that behaviour, the judge could require attendance at a substance misuse service. In other circumstances, the court could require an offender to undertake an apprenticeship for the purposes of rehabilitating them and helping them to become a contributing member of society.

If we are now to envisage a significant expansion in the use of suspended sentences, it is only right that Parliament builds in minimum expectations. Rehabilitation does not happen just because you want it, or by osmosis. If an offender has underlying mental health needs or substance addiction, or lacks stable employment, simply to suspend a sentence without addressing those elements that are the real drivers of crime is neither just nor sensible. It helps no one, least of all other members of the public.

Importantly, the amendment would not interfere with the sentencing powers of the independent judiciary. Rather, it would simply ensure that the court had power to enforce rehabilitative activity, for otherwise any failure to comply with this order would be considered a breach of the suspended sentence order.

I know the Minister has a long history of involvement in rehabilitation of prisoners, and I praise him for that. Hopefully, he will see that this amendment would complement that work. I beg to move.

[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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[Lord Jackson of Peterborough (Con)]

My Lords, I support the amendment in the names of my noble friends on the Front Bench. Some 14 years ago, I travelled to San Miguel prison in Santiago, Chile, which was one of the worst prisons in South America. I had the dubious distinction of travelling often with the noble Baroness, Lady Stern, who is a noted prison campaigner. When I travelled with her, she invariably asked me to accompany her to a prison. She would regale me with the greatest hits of the worst prisons in the world. Her choice was Kingston prison, in Jamaica. At San Miguel, in Santiago, we saw the results of a system that was overly concentrating on punitive actions and did nothing on education, training and rehabilitation. In fact, a few weeks before, 81 prisoners had died in a fire following a riot in that prison. Over the course of a few years, I visited the toughest prisons in Honduras and El Salvador. I can tell the Committee that they were not Pontins holiday camp in any respect.

The serious point, our earlier debates notwithstanding, is that if we accept the importance of suspended sentences and the fact that, according to Ministry of Justice figures, incarcerating a person in the prison estate costs £53,801 a year, then the state has an obligation to provide those individuals in the criminal justice system with endemic, underlying problems—drink and drug misuse, poor family background and poor education, skills and training—with an alternative way out of recidivism.

I have a great deal of respect for the noble Lord, Lord Foster of Bath, particularly the work he has done on problem betting and gambling. I look forward to our debates on that issue in this Bill. He has been rather shy in neglecting to mention the Offender Rehabilitation Act 2014 that arose from the coalition Government. The Minister and others will know that, prior to the Act—which was groundbreaking legislation —prisoners were turfed out of prison on Friday evening with £46 and within a few hours were in the company of ne’er-do-wells, drug-dealers and others who were leading them back to a life of crime. That was the beginning of rehabilitation being taken seriously for offenders who were not at the top end of seriousness in their offences: there was drug testing and a need to attend appointments; specific, targeted help for young people; the beginning of rehabilitation activity requirement as a policy; and bespoke treatment for female offenders, which is something I know the Minister cares deeply about.

I welcome this amendment and the imperative of the wording. While it is important to respect the discretion of the judiciary, to put in the Bill a requirement that we use that time in as efficacious a way as possible, to ensure that those who have the most acute problems and who will cause the most acute problems, as my noble friend Lady Porter put it—

[Viscount Hailsham (Con)]

It is not so much that I dissent from what my noble friend is saying, but a mandatory requirement on the judge implies the capacity to fulfil that requirement. I can imagine circumstances in which the Probation Service would not be able to fulfil a particular requirement. In that event, the trial judge might feel that he or she could not impose a suspended sentence because they could not impose the required obligation to fulfil the condition.

[Lord Jackson of Peterborough (Con)]

My noble friend makes a fair point. However, it could be put the other way, like the chicken and the egg. Putting this as an imperative in the Bill would oblige the Probation Service and other organisations, such as the NHS and community trusts, to raise their game to provide those services.

[Viscount Hailsham (Con)]

That may be so, but that takes you back to the point that the noble Lord, Lord Foster, was making: the fact that there is not capacity in many of the required services.

[Lord Jackson of Peterborough (Con)]

I understand the point that my noble friend is making—