Sentencing Guidelines (Pre-sentence Reports) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 22nd April 2025
(3 weeks, 2 days ago)
Commons ChamberSentencing Guidelines (Pre-sentence Reports) Bill 2024-26 Read Hansard Text Watch Debate
This text is a record of ministerial contributions to a debate held as part of the Sentencing Guidelines (Pre-sentence Reports) Bill 2024-26 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
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The Lord Chancellor and Secretary of State for Justice (Shabana Mahmood)
I beg to move, That the Bill be now read a Second time.
When I spoke in this House on 1 April, I set out the Government’s intention to introduce emergency legislation, because I believe that our justice system must be above all else fair, and that, standing before a judge, we are all equal, no matter the colour of our skin or the question of our faith. Given the existential nature of this matter for our justice system, I was clear that we would move at pace to change the law. The Sentencing Guidelines (Pre-sentence Reports) Bill was introduced that same day. With Second Reading taking place just three weeks later, we are forging ahead with plans to legislate as quickly as possible.
Before I set out the contents of the Bill, it bears repeating how we came to be in the current situation and why expedited legislation is necessary. In the last Parliament, the Sentencing Council put forward revised guidelines on the imposition of community and custodial sentences. I should note that during a statutory consultation they were welcomed by the last Conservative Government in no uncertain terms. The shadow Transport Secretary, the hon. Member for Orpington (Gareth Bacon), who was a Justice Minister at the time, should be able to furnish his colleagues with the details, but as he is absent today, I will do so.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
Can the right hon. Lady clarify whether the guidelines proposed under the previous Government were the same as those with which she is dealing now, or did they differ—and if they differed, how did they differ?
Shabana Mahmood
They did not differ in any substantial way. All the guidelines, in so far as they concern issues relating to race, religion, culture or belief, are exactly the same as those to which the Justice Minister responded under the Conservative Administration. Hiding behind that, I am afraid, shows a failure to reckon with the Opposition’s own track record, which has become quite a hallmark of theirs in recent weeks and months.
These guidelines help judges, when sentencing an offender, to determine whether to impose a community order or a custodial sentence, providing guidance on the thresholds for disposals of this type. In the process of deciding which threshold has been met, judges are required by law to obtain a pre-sentence report, except in circumstances where they consider such a report to be unnecessary. The reports are used to give the courts more context of the offending behaviour in a given case, and set out any factors that should be considered as part of the sentencing process. As I said to the House on 1 April, generally speaking I am in favour of the use of pre-sentence reports, and in fact I have recently freed up capacity in the Probation Service precisely so that it has more time to produce reports of this type.
Sir John Hayes (South Holland and The Deepings) (Con)
The chairman of the Sentencing Council has argued that the sentence should be tailored to the offender, but my constituents—and, I suspect, those of the Secretary of State—think that the sentence should be tailored to the offence and its effect on the victim. That is what counts, not the background, circumstances, history or origins of the offender.
Shabana Mahmood
The purpose of the pre-sentence reports, used properly, is to provide the court with the full context of the offending behaviour. That enables the court to ensure that when it imposes a custodial sentence it will be successful and capable of being delivered in respect of that offender, or else a community sentence should be imposed instead. It is a useful mechanism that judges have at their disposal. We would expect it to be used in all cases except when the courts consider it unnecessary because they have all the information. Because I consider pre-sentence reports to be so important in giving the courts all the information that they need to pass the right sentence for the offender who is before them, I have specifically freed up capacity in the Probation Service so that it can do more work of this type. However, the updated guidelines specifically encourage judges to request them for some offenders and not others, stipulating circumstances in which a pre-sentence report would “normally be considered necessary”. That is the bit that I am seeking to change.
Sir Julian Lewis (New Forest East) (Con)
The right hon. Lady has just said something very important: namely, that she would normally expect a pre-sentence report to be given in all, or at least almost all, cases. I hope that is her position, because what seems unfair to me is that a pre-sentence report, which presumably enables people to present arguments in mitigation, should be available to some people who have been convicted of a crime but not to others. Surely it should be available either to everyone or to no one, because everyone’s individual circumstances deserve the same degree of consideration.
Shabana Mahmood
The right hon. Gentleman is absolutely right. In fact, we fully support section 30 of the Sentencing Act 2020—the sentencing code—which makes it clear that a court must obtain a pre-sentence report unless it considers it unnecessary to do so. That would be in cases where judges consider that they already have at their disposal the facts that will enable them to make a determination of the correct sentence for any particular offender. I think that the Sentencing Council got things right in the paragraph of the current guidelines that comes before the one that is the subject of the debate and the Bill, which states:
“PSRs are necessary in all cases that would benefit from an assessment of one or more of the following: the offender’s dangerousness and risk of harm, the nature and causes of the offender’s behaviour, the offender’s personal circumstances and any factors that may be helpful to the court in considering the offender’s suitability for different sentences or requirements.”
That covers all the areas in which we would normally consider PSRs to be necessary, and I would like them to be used more extensively. Indeed, I would like them to be the norm in all cases, because I think they offer important information to people who are passing sentence—unless, of course, it is unnecessary because judges have already been furnished with all the details, having heard the whole of the case that has been taking place before them.
Sir Jeremy Wright (Kenilworth and Southam) (Con)
The Lord Chancellor has just given us, very helpfully, the list of matters that might be relevantly considered in a pre-sentence report. As she has said, however, one of the items on that list is “personal circumstances”, and that is what the Bill will remove from the Sentencing Council’s discretion. May I ask her why she has not used in the Bill the language that is included in the explanatory notes? Paragraph 8 states that the Bill will
“prevent differential treatment… It does this by preventing the creation of a presumption regarding whether a pre-sentence report should be obtained based on an offender’s membership of a particular demographic cohort”.
That strikes me as a much narrower exclusion, and perhaps one better targeted at the problem that the Lord Chancellor has, in my view, rightly identified.
Shabana Mahmood
The right hon. and learned Gentleman is right. That is why we have offered the additional context in the explanatory notes. Personal characteristics and personal circumstances have, over the years, been elided in different court judgments, and the different definitions of the two have sometimes slipped. I wanted to make it clear in the Bill that we are constraining the Sentencing Council’s ability to create guidance for PSRs in relation to personal characteristics. We refer in the Bill to race, religion, culture and belief, specifically to ensure that the Sentencing Council understands that we are targeting this part of the offending section of the imposition guideline. It will then have its own interpretation of how personal circumstances and personal characteristics should apply. I would expect this to be analogous to protected characteristics in the Equality Act 2010, in terms of the way in which the courts are likely to approach the question of what a personal characteristic is for the purpose of the Bill.
However, I wanted to make the intention behind the Bill very clear to the Sentencing Council, and to everyone else. It is tightly focused on the offending section of the imposition guideline and leaves the wider question of personal circumstances untouched. As I will explain later in my speech, there is helpful Court of Appeal guidance on circumstances and on other occasions on which a PSR should normally be required, and nothing in the Bill will affect the Court of Appeal precedents that have already been set.
Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)
Is the Lord Chancellor aware that the Sentencing Council guidelines, and indeed the Bill, turn on issues that some of us have campaigned on for decades? I think that there would be concern if the Bill undermined the independence of the judiciary.
Shabana Mahmood
It certainly does not undermine the independence of the judiciary. There is a long tradition of campaigners, including my right hon. Friend, who have a lengthy track record of campaigning on issues relating to disparities within the criminal justice system and, indeed, across wider society. In so far as those disparities relate to the criminal justice system, my strong view is that they are matters of policy.
Parliament is the proper place for that policy to be debated, and Parliament is the proper place for us to agree on what is the best mechanism to deal with those problems. It is not within the purview of the Sentencing Council, because this is a matter of policy. Judges apply the laws that are passed by this House; that is their correct and proper function. I will always uphold their independence in that regard and will never interfere with it, but this turns on a matter of policy. It is right for the Government of the day to seek a policy response to this issue, and it is right for it to be debated and, ultimately, legislated for in the House.
Jim Shannon (Strangford) (DUP)
I thank the Lord Chancellor for opening the debate, and for her answers to the questions so far. I think every one of us believes that the foundational principle that justice is blind must be adhered to in every way, but we live in an age of ever-changing political correctness, which, regardless of whether we like it or not, invades Parliament and our lives.
I am very much in favour of what the Lord Chancellor has said about race and faith. As a person of faith, I want to make sure that race and faith can never be mitigating or aggravating factors when it comes to justice. Given the lives that we live, the world that we live in, and all the things that impact on us daily and in this House as MPs, can the Lord Chancellor confirm that faith, justice and religion will always be preserved in the way that they should be?
Shabana Mahmood
For me, one of the most moving parts of the parliamentary day is when the day starts with prayers. Those are Christian prayers, and I am of the Muslim faith, but I always find it moving to be part of them and to hear them. They remind us that we all belong to a country with a long heritage, which is steeped in faith. The source code for much of the law of England and Wales is the Bible. The hon. Gentleman makes some broader points on the issue of faith and how important it is, and I suspect that he and I have a lot in common in that regard. There must never be differential treatment before the law of our land, and before any court, on the basis of faith.
Mr Jonathan Brash (Hartlepool) (Lab)
I welcome the Lord Chancellor’s point about parliamentary sovereignty and that fact that policy must be determined by this place. I think many Members from across the House will have been quite shocked by the response of the Sentencing Council to her letter when she asked it to consider the guidelines again. Does she agree that if this place continues to butt heads with the Sentencing Council over guidelines like these, maybe the best thing to do is abolish the Sentencing Council?
Shabana Mahmood
I have had constructive conversations with the Sentencing Council, and I have made it very clear that I do not really do personal. I certainly would not do it in relation to the judiciary, whose independence I uphold and whose security I am ultimately responsible for. I take those responsibilities very seriously. I swore an oath on my holy book, and that means a huge amount to me. There is a clear difference here about where the line is drawn between matters of policy and matters that are correctly within the purview of the judiciary, which is how the law should be applied in the cases that they hear. I am simply making it very clear that this is policy and is for this place to determine, but as I will come to later in my speech, this situation has highlighted that there is potentially a democratic deficit here. That is why I am reviewing the wider roles and powers of the Sentencing Council, and will legislate in upcoming legislation if necessary. I will now make more progress with my speech and give way to other colleagues later if people wish to intervene again.
The updated guidelines specifically encouraged judges to request pre-sentence reports for some offenders and not for others, stipulating the circumstances in which a pre-sentence report would “normally be considered necessary”. This included cases involving offenders from ethnic, cultural or faith minorities. In other words, a pre-sentence report would normally be considered necessary for a black offender or a Muslim one, but not necessarily if an offender is Christian or white, and we must be clear about what that means. By singling out one group over another, all may be equal but some are more equal than others. We must also be honest about the impact that this could have. Equipped with more information about one offender than another, the court may be less likely to send that offender to prison. I therefore consider the guidance to be a clear example of differential treatment. As such, it risks undermining public confidence in a justice system that is built on the idea of equality before the law.
Sir Ashley Fox (Bridgwater) (Con)
Given that the Sentencing Council refused the Lord Chancellor’s first invitation to rewrite its guidance, is she confident that the limited nature of this Bill is sufficient? Would she not be wiser to take a broader power to ensure that in future all sentencing guidance has an affirmative vote in this place?
Shabana Mahmood
It is right that, moving at pace, I have sought to have a targeted Bill that deals with this particular imposition guideline. I have made it very clear that I am conducting a wider review of the role and powers of the Sentencing Council. If we need to legislate further—maybe in the way that the hon. Gentleman suggests, although other mechanisms are also potentially available—I will do so. I am not ruling out further legislation—in fact, it is very much on the table—but it is right that we are moving quickly in order to deal with the problems that could be caused by the guidelines coming into force, and that I have taken targeted action in this short but focused Bill.
As I told the House a few weeks ago, I had several discussions with the Sentencing Council in the time leading up to 1 April, when the updated guidelines were due to come into force. I reiterate my gratitude to the council’s chair, Lord Justice William Davis, for engaging with me on this issue and for ultimately making the right call by pausing the guidelines while Parliament has its say. I should say again that I have no doubt whatsoever about the noble intentions behind the proposed changes, because I understand the problem that the Sentencing Council was attempting to address. Racial inequalities exist in our justice system and are evident in the sentencing disparities between offenders from different backgrounds, but as the Sentencing Council acknowledges, the reasons for this are unclear. Addressing inequalities in the justice system is something that this Government take very seriously, and we are determined to increase confidence in its outcomes, which is why we are working with the judiciary to make the system more representative of the public it serves.
I have also commissioned a review of the data that my Department holds on disparities in the justice system in order to better understand the drivers of the problem, but although I agree with the Sentencing Council’s diagnosis, I believe it has prescribed the wrong cure. Going ahead with the new guidelines would have been an extraordinary step to take. It would have been extraordinary because of what it puts at risk: the very foundations of our justice system, which was built on equality before the law. The unintended consequences would have been considerable, because the idea that we improve things for people in this country who look like me by telling the public that we will be given favourable treatment is not just wrong, but dangerous. We are all safer in this country when everyone knows we are treated the same. If we sacrifice that, even in pursuit of a noble ideal such as equality, we risk bringing the whole edifice crashing to the ground.
I know there are disagreements in this House with regard to the correct policy to pursue, not least between the shadow Secretary of State for Justice, who opposes the guidelines, and the shadow Transport Secretary, whose support for them I have noted already—though I suppose that does assume that the shadow Secretary of State for Justice really is who he shows himself to be today. I must admit that I have begun to question whether his principles are set or really of no fixed abode. After all, he did pose as a Cameroon centrist for so many years, and only recently became his party’s populist flag bearer. It is enough to make me wonder whether he is, in fact, a Marxist—but one of the Groucho variety. “These are my principles,” he says, and if you do not like them, he has others.
Regardless of our positions on this question of policy, one thing is clear: this is a question of policy. How the state addresses an issue that is systemic, complex and of unclear origin is a question of what the law should be, not how the law should be applied. Let me be clear about that distinction: Parliament sets the laws and the judiciary determine how they are applied, and they must be defended as they do so. I will always defend judicial independence, and as I said earlier, I swore an oath to do so when I became the Lord Chancellor. Given the shadow Lord Chancellor’s recent diatribes, including just hours ago in this place, he may want to acquaint himself with that oath, if he intends ever succeeding me in this position, although I am assuming that it is my job he wants, not that of the Leader of the Opposition.
James Wild (North West Norfolk) (Con)
I think the Lord Chancellor just said that the approach to the guidelines taken by the Sentencing Council puts the foundation of the justice system at risk. Given that, how can she have confidence in a Sentencing Council that takes such an approach?
Shabana Mahmood
I have engaged constructively with the Sentencing Council and will continue to do so, and I am in the process of legislating to prevent this imposition guideline from ever coming into force. It has currently been paused, and I think that was the right step for the Sentencing Council to take. I am conducting a wider review of the roles and powers of the Sentencing Council, and it is right that I take a bit more time to think carefully about that, about what we may or may not want it to do, and about how we may right the democratic deficit that has been uncovered. I think my approach to the Sentencing Council is very clear from the action I am taking.
Sir Julian Lewis
I do not think anyone is questioning the firm action the Lord Chancellor is taking. The point my hon. Friend the Member for North West Norfolk (James Wild) made is: why should it be necessary for her to take that action? Surely, if the Sentencing Council cannot see the distinction she makes between its proper role and Parliament’s proper role, it is not fit to do the job.
Shabana Mahmood
The Sentencing Council might argue, rightly, that given the guideline was welcomed by the former Government, it probably thought it was on safer ground than I consider it to be. However, there is clearly a confusion, a change in practice, or a development in ways I disagree with about the proper line between what is practice or the application of the law and what is properly in the realm of policy. That is what I am absolutely not going to give any ground on and that I will be setting right.
Sir John Hayes
The right hon. Lady is right about the moving process or trend that she has described, but the trouble is that it is part of a bigger problem, is it not? It is the problem of judicial activism, and it is not new. For some time, judicial activists have sought to do exactly what she has said, and it is they, not people in this House, who endanger the separation of powers.
Shabana Mahmood
However, it is always up to the people in this House, if they feel that a law is being applied in ways that were not intended, to put that law right. I am afraid the right hon. Member’s comment is a rather damning indictment of 14 years of Conservative Government, with 14 years of sitting back and allowing other people to do the policy work that Ministers in the previous Government perhaps did not have the time or inclination to do themselves.
I do not think that judges, in applying the law, are doing anything wrong; they are doing their job. They are public servants, and they do their job independently. It is right that we have an independent judiciary in this country. We are very lucky to have a judiciary that is world class and highly regarded. One of the reasons why so many businesses from all over the world want to do business in this country is that they know they can trust our courts system and the independence of our judges. I think it is incumbent on the whole of this House to defend the independence of the judiciary, because that independence was hard won. It is one of our absolute USPs as a rule of law jurisdiction in this country, and none of us must ever do anything that puts it at risk.
If there are issues about the way in which the law is applied—if Parliament or Ministers ever consider that it has strayed too far from the original intention—we can always legislate, and I am doing just that today. I hope this is an example that others, if they have issues in their areas, may consider taking as well. It is a question of policy, and that should be decided and debated here in this place, in this House, and the public must be able to hold us to account for the decisions we take, rewarding or punishing us at the ballot box as they see fit. This is the domain of government, politics and Parliament, and today we reassert our ability to determine this country’s policy on the issue of equality of treatment before the law.
Dr Caroline Johnson
The right hon. Lady is making a point about the wider justice system and the importance of equality before the law. What has she done to assure herself and the House that, in all aspects of her Department’s work, people are being treated equally under the law—whether in relation to parole, how they are treated in prison, bail conditions and so on?
Shabana Mahmood
I have ordered a wider review of all guidance across all the MOJ’s work in so far as it relates to equality before the law to make sure that the problems we have uncovered here are not replicated elsewhere. There is the issue of bail guidance, which was discussed in the House earlier. I have already ordered a review, and that guidance is being redrafted as we speak. That particular guidance has been something like 20 years in the making—it has been added to over many years—so the redraft has to be careful and we must make sure it does not have any unintended consequences. However, we are cracking on with that work at pace, and I will make sure that, by the time I am done, we can all be absolutely clear that this sweep towards allowing potential differential treatment is sorted out once and for all.
Shabana Mahmood
If the hon. Lady will forgive me, I will make more progress. I think I have been more than generous.
That brings me to the Bill before us today. While the updated Sentencing Council guidelines are currently paused, if we do not act they will come into force— [Interruption.] Well, there was a lot to say, gentlemen, about the previous Government’s track record and it needed to be said. And I do not think the hon. Member for Kingswinford and South Staffordshire (Mike Wood) should mind me taking interventions from people on his own side. That is a novel approach for the shadow Front Bench.
Let me turn to the specifics of the Bill. It is tightly focused, containing just two clauses. Clause 1 amends section 120 of the Coroners and Justice Act 2009, which brought the Sentencing Council into existence. It dictates that the guidelines the council produces may not include references to personal characteristics, including race, religion or belief, or cultural background. Clause 2 relates to how the Bill will be enacted: that it will apply only to England and Wales, and that its measures will come into force on the day after it passes.
It is also important to be clear about what the Bill does not do. It does not stop the Sentencing Council from issuing broader guidance concerning requests for pre-sentence reports in those cases where it is helpful for the court to understand more about an offender’s history and personal circumstances. The Bill does not interfere with the courts’ duties to obtain a pre-sentence report in appropriate cases, for example those involving primary carers and victims of domestic abuse. And, as detailed in the Bill’s explanatory notes, it does not change existing precedent where the courts have determined that pre-sentence reports are necessary or desirable, in cases such as: Thompson, where the Court of Appeal recently emphasised their importance in sentencing pregnant women or women who have recently given birth; Meanley, in which the court referenced the value of pre-sentence reports for young defendants; or Kurmekaj, where the defendant had a traumatic upbringing, vulnerability, and was a victim of modern slavery. Instead, the Bill narrowly focuses on the issue at hand, putting beyond doubt a principle which finds its ancient origins in Magna Carta and has developed over the centuries to serve the interests of justice not just here but in jurisdictions around the world: that each of us, no matter who we are, where we come from or what we believe, stand equal before the law of the land.
Wider questions remain about the role and the powers of the Sentencing Council, as I have noted. The council does important work, bringing consistency to judicial decision making, but it is clear in this instance that it went beyond its original remit. It sought to set policy, which stood out of step with the Government of the day. Therefore, it raises the question: who should set sentencing policy? Today’s legislation only addresses this question in the narrowest terms, considering the guidance on pre-sentence reports. It does not give us a definitive resolution as to whether it is Government Ministers or members of the Sentencing Council who should decide policy in the future. As I noted, that leaves us with a democratic deficit.
As I told the House on 1 April, the question of the role and powers of the Sentencing Council must therefore be considered further. That work is already under way in my Department. Should a further change be required, the Government will include it in upcoming legislation. The Sentencing Council plays an important role in our justice system, and any changes to it must be made carefully and with the consideration it deserves. I am sure they will be discussed more in this House in the months ahead, and I welcome the opportunity to debate them.
The Bill we are debating today is small, but the issues it contains could not be of greater significance. I know the majority of right hon. and hon. Members in this House would agree that the Sentencing Council’s intentions on this issue were noble, but in trying to reach for equality of outcome, they sacrificed too much, undermining the sacred principle of equality before the law. It is right that we, as policymakers, stop the updated guidelines from coming into force. We must stand up for the idea that no matter our race or religion, no person should receive preferential treatment as they stand in the dock before a judge, so I beg to move that the Bill now be read a second time.
Ms Abbott
I can say with confidence that the Sentencing Council is talking about issues to do with race and criminal justice because of a history, going back decades, of problematic issues in relation to race and criminal justice. I will come to those later. The independence of the Sentencing Council is crucial, and the idea that anybody in the Chamber is standing up for law and order yet seeks to undermine its independence—and by implication, that of the judiciary as a whole—is quite remarkable.
Next, what do the guidelines actually say? Much of the debate implies that black and minority persons are singled out for pre-sentence reports under the guidelines. On the contrary, there is a whole list of people in the guidelines on whom, the Sentencing Council suggests, judges and magistrates might ask for a pre-sentence report. Those persons include those at risk of committing their first custodial sentence; young adults; women; ethnic minorities; yes, cultural minorities, of course; pregnant and post-natal women; and the sole or primary carer for dependent relatives. The Sentencing Council is clear that that is not an exclusive list; ideally, every defendant should have a pre-sentence report. The aim of the guidelines is to ensure that judges and magistrates get the most information possible. Who could object to garnering more information on any defendant? It is certainly not the intention of the guidelines to dictate the sentence in any given case.
Yet it is being argued that a pre-sentencing report will discourage a judge from sending an offender to jail. We are asked to believe that our judiciary is weak-minded and susceptible, and that it will not live up to its centuries-old standards, which, as we heard earlier, go all the way back to Magna Carta. However, the House was also told earlier that our judiciary is world-class and highly regarded. Both propositions cannot be true.
The Parliamentary Under-Secretary of State for Justice (Alex Davies-Jones)
Yes, they can.
Ms Abbott
Well, either our judiciary is world-class and highly regarded, or it is so soft-minded that the very existence of a pre-sentencing report will make it rule in a way in which it would not otherwise have ruled.
Decisions by judges and magistrates on individual cases are not the same as policy. The Sentencing Council itself is very clear that it does not seek to dictate policy; it is simply trying to ensure that judges and magistrates have the maximum amount of information. Leading King’s Counsel Keir Monteith says that there has been a deliberate misreading of the rules in order to generate a row, and I believe that is correct.
Then we come to the talk, which I have heard on both sides of the House, about two-tier criminal justice. That can only mean that black defendants are treated more favourably than white defendants. Yet the facts tell us to the contrary. Ministers will be aware of the Lammy review, chaired by my right hon. Friend the Member for Tottenham (Mr Lammy)—now the Foreign Secretary. It was a review of race in the criminal justice system, in which he found that
“Despite making up just 14% of the population,”
black and ethnic minority men and women
“make up 25% of prisoners, while over 40% of young people in custody are from BAME backgrounds.”
He added:
“If our prison population reflected the make-up of England and Wales, we would have over 9,000 fewer people in prison—the equivalent of 12 average-sized prisons.”
My right hon. Friend did not find a criminal justice system where black and brown people are treated more favourably than white people, and he did not find equality before the law. There is no reason to believe that things have changed since he drew up his review.
We need to appreciate that not only do we have a two-tier system, but it is a two-tier system in completely the opposite way to what the Lord Chancellor suggests, and it has been like that for decades. The population wants to see our two-tier criminal justice system taken seriously.
Members may remember the tragic death of Stephen Lawrence in the early 1990s. It took a Labour Government and a Labour Home Secretary to commission a judge-led inquiry into the Stephen Lawrence case. In 1999 the Macpherson inquiry reported. It spoke in an unequivocal way about institutional racism in the police service, and it spoke in a way that I had never heard it spoken about in this House or at the most senior levels in the state. Nobody since then has challenged the notion that there is institutional racism in the police.
Do we have to have our own Macpherson inquiry into the workings of the judicial system before people will accept that institutional racism is an issue in the courts as well? It is not enough to say, “Well, you know, the facts point in that direction but we are not quite sure why the figures are like that.” We know why the figures are like that, and we have known that for decades.
If we want to win the respect of the community as a whole, we must be seen to be working towards a fair criminal justice system, not just trying to score points off the opposition; and we must look at the long term, rather than the short term. We know that, in England and Wales, black people are much more likely to be arrested than white people. Specifically, black individuals are twice as likely to be arrested as white individuals. That disparity extends to imprisonment, with black individuals being more likely to be sentenced to prison and serving longer sentences than their white counterparts. Everybody knows that people are not treated the same, and it is misleading of Members on both sides of the House to imply that that is so.
Peter Herbert, chair of the Society of Black Lawyers, said:
“We have experienced racist two-tier policing for over 500 years. If we achieve equal treatment that is not two-tier as it is long overdue. We have never asked for special treatment only equal treatment.”
The Lord Chancellor should pay attention to the wish of so many members of the community, in her constituency in Birmingham and my constituency in east London, and the wishes of so many millions of people in the community to see a fair criminal justice system that treats people fairly, not unfairly as has happened in the past. Members will know that it took the Macpherson inquiry to get a measure of understanding about criminal justice in policing.
In closing, I will say this. It is interesting to hear the banter about this issue between those on the two Front Benches, but this is not an issue for banter. This is people’s lives; this is people’s liberty. I do not think that the debate is enhanced by some of the Trump-like narrative that we are getting from the Opposition. We do not need Donald Trump-type politics in Britain today. We need seriousness about the unfair discrimination in the criminal justice system, and a willingness not just to talk about it, but to do something about it.
The Parliamentary Under-Secretary of State for Justice (Sir Nicholas Dakin)
I thank all right hon. and hon. Members on both sides of the House for their valuable contributions. I think what I heard at the end from the shadow Minister, the hon. Member for Kingswinford and South Staffordshire (Mike Wood), was support for this Bill, and I thank him for that. Today’s debate has been helpful; it has underscored the broad support for this legislation, and for the principle of equality before the law. Many Members—pretty much every Member who has spoken—underlined the importance of that principle. I am proud that my right hon. Friend the Lord Chancellor acted so swiftly to address this situation in a way that was courteous and respectful to all involved, and to get us to where we are today.
While we have had much agreement, the Mother of the House, my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott), for whom I have the highest regard, announced herself as being in a minority of one. I am sure that is not the case, but she drew attention to her serious concerns about disproportionality in the criminal justice system. I can say to her that we share her concerns about disproportionality. That is why my right hon. Friend the Lord Chancellor has announced a proper review of all the data, so we will know what actions will properly address that disproportionality and bring about change in a way that addresses the seriousness of the unfairness in the system to which she rightly referred.
Equality before the law is a fundamental principle of our criminal justice system. It is the Government’s policy and belief that it should be protected. We know that more must be done to address inequalities in the justice system, and we are absolutely committed to tackling racial disparities across the criminal justice system. We are also taking steps such as increasing diversity in our staff and working with the judiciary to make sure that our appointments are reflective of the society we serve. That has included supporting under-represented groups in joining the judiciary and the magistrates, and has involved the Ministry of Justice and partners running widely supported outreach programmes to reduce barriers to individuals joining. However, we need to do much more. I commend my right hon. Friend the Mother of the House for keeping us on notice, and I promise her that we will deliver.
The hon. Member for Eastbourne (Josh Babarinde), who speaks for the Liberal Democrats, reminded us, as indeed did my hon. Friend the Member for Hartlepool (Mr Brash), that these guidelines were nodded through by the previous Conservative Government. The hon. Member for Eastbourne also reminded us of our inheritance of an underfunded probation and court system, which has led, in his words, to a rationing of pre-sentence reports. I agree with him that the debate should be about how we move to universality of pre-sentence reports, not about rationing. Of course, none of this debate alters the fact that independent judges can ask for pre-sentence reports whenever they feel they are necessary. Indeed, in her opening speech, the Lord Chancellor made it clear that capacity is being increased, quite properly, so that more pre-sentence reports can be done.
We had very helpful contributions from the Chair of the Justice Committee, my hon. Friend the Member for Hammersmith and Chiswick (Andy Slaughter), and the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright). Both of them drew attention to the importance of pre-sentence reports in identifying the most appropriate and effective sentence for individual offenders. The Chair of the Select Committee gave us the full timeline of this affair to date, and a good analysis of where we are with the Bill. I agree with him that we will have more opportunity to look at matters in detail in Committee. Likewise, the right hon. and learned Member for Kenilworth and Southam drew attention to his concerns about the breadth of the Bill. Again, we will have an opportunity to examine them further in Committee.
My hon. Friend the Member for Stoke-on-Trent South (Dr Gardner) raised very serious concerns about issues relating to pregnant women, and was pleased that the Bill does not affect Court of Appeal case law in that respect. In fact, nothing in the Bill, as she helpfully reminded the House, prevents judges from requesting PSRs for pregnant women. Judges will continue to be able to request PSRs in cases where they ordinarily would, including appropriate cases involving pregnant women. We would expect that to continue.
I am happy to have heard so much support for the Bill. There will be a drop-in for MPs on Monday about the next stages of the Bill, at which Members can have any questions answered, and can feed into the process before Committee stage next week. This emergency legislation, while a small Bill, is of great significance. It will stop the Sentencing Council’s updated guidelines on pre-sentence reports from coming into force, and will safeguard against the risk of differential treatment arising from their use. The action taken by the Government on this issue underscores our commitment to equality before the law, which all hon. Members who have spoken today have underlined, and which is most important. It is the ancient principle on which our justice system was built. I commend the Bill to the House.
Question put and agreed to.
Bill accordingly read a Second time.
Sentencing Guidelines (Pre-sentence Reports) Bill: Programme
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Sentencing Guidelines (Pre-sentence Reports) Bill:
Committal
(1) The Bill shall be committed to a Committee of the whole House.
Proceedings in Committee, on Consideration and on Third Reading
(2) Proceedings in Committee of the whole House shall (so far as not previously concluded) be brought to a conclusion three hours after their commencement.
(3) Any proceedings on Consideration and proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion four hours after the commencement of proceedings in Committee of the whole House.
(4) Standing Order No. 83B (Programming committees) shall not apply to proceedings in Committee of the whole House, to any proceedings on Consideration or to proceedings on Third Reading.
Other proceedings
(5) Any other proceedings on the Bill may be programmed.—(Gerald Jones.)
Question agreed to.
Sentencing Guidelines (Pre-sentence Reports) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 30th April 2025
(2 weeks, 1 day ago)
Commons ChamberSentencing Guidelines (Pre-sentence Reports) Bill 2024-26 Read Hansard Text Watch Debate Amendment Paper: Committee of the whole House Amendments as at 30 April 2025 - (30 Apr 2025)
16:16 - The House divided: - Ayes: 86 / Noes: 222 - Question accordingly negatived.
16:30 - The Committee divided: - Ayes: 88 / Noes: 226 - Question accordingly negatived.
16:50 - The House divided: - Ayes: 214 / Noes: 3 - Question accordingly agreed to.
This text is a record of ministerial contributions to a debate held as part of the Sentencing Guidelines (Pre-sentence Reports) Bill 2024-26 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Dr Mullan
I rise to speak in support of amendments 3 and 4 in my name and in the name of the shadow Secretary of State for Justice, my right hon. Friend the Member for Newark (Robert Jenrick), and of Conservative colleagues.
As MPs from across the House have made clear, the draft guidelines produced by the Sentencing Council would have led to an unacceptable two-tier justice system in which defendants were treated differently on the basis not of their crimes, but of their racial, cultural or religious identity. In fact, the record will show that two-tier justice did exist for several hours, because this issue was managed so shambolically that the guidance came into effect ahead of its formal withdrawal. That is not justice—it is a betrayal of the fundamental principle of equality before the law. It would have happened under the watch of this Labour Government and this Lord Chancellor but for the intervention of the Opposition, and in particular the shadow Secretary of State for Justice.
This Bill is necessary, but it is not sufficient. Instead of acting decisively to restore public confidence, after the Labour Government have been dragged to this Chamber to act at all, they now bring forward a half measure—a meagre response that falls short of what it should be. That is why the Opposition have tabled two important amendments.
Amendment 3 would ensure that in future, sentencing guidelines on pre-sentence reports cannot simply be issued by the Sentencing Council without democratic oversight, and would instead require the consent of the Secretary of State before coming into force. Why is that now necessary? The Sentencing Council has proven itself not just in the initial measures it proposed, but in its attitude and response towards parliamentary and public scrutiny, to be unable to sustain public confidence in its work in this area. It is one thing for a public body to possess operational independence and to seek to exercise that independence on a day-to-day basis; it is quite something else for a public body to choose not to exercise good judgment and make use of that independence to act with restraint in the face of widespread Government, Opposition, parliamentary and public concern. While they do, of course, have their merits, the actions of the Sentencing Council have brought to life the potential pitfalls of unelected quangos that are deaf to the concerns of the people who pay their wages and the politicians who represent them.
While this whole affair has no doubt been humiliating for the Lord Chancellor and the Government, the damage to public confidence in the leadership of the Sentencing Council is just as great. Despite what the hon. Member for Eastbourne (Josh Babarinde) said in his remarks on Second Reading, the Sentencing Council did not agree to pause the implementation of the guidelines to allow for a period of reflection—it outright refused to do so. He has misunderstood the sequence of events. The council paused only because we would have otherwise entered into a constitutionally unsustainable situation where people were being sentenced in the courts, with guidelines being legislated against in Parliament through emergency legislation. It was that direct threat alone that caused the council to pause and demonstrated its lack of judgment.
I am afraid that we must therefore act more broadly to constrain the Sentencing Council in future, pending any wholesale changes that may be forthcoming. That is why the shadow Secretary of State put forward a Bill that would have taken the necessary steps to return accountability of the body through the Lord Chancellor while wholesale reform could be undertaken. Labour chose to oppose that Bill. Today, it is out of scope for the Opposition to seek to introduce a similarly wide amendment, and we are therefore restricted to seeking to at least restore accountability where we can in this field.
The amendment would require that guidelines on pre-sentence reports drafted by the council must be expressly approved by the Secretary of State before they come into force as definitive guidelines—a basic safeguard of democratic accountability, ensuring ministerial oversight on sensitive sentencing matters. Without our amendment, history may repeat itself: the same council will be free to bring forward ideological frameworks that Ministers will be powerless to stop before the damage is done. Had these guidelines gone unchallenged, we would have tilted sentencing based on identity politics, undermining public confidence in the entire system.
Our amendment would create a crucial safeguard, ensuring that no future set of guidelines in this field, at least, could bypass ministerial accountability. I encourage those on the Government Benches who have made clear that they wish to see accountability restored across the work of the Sentencing Council to vote in support of amendment 3; doing otherwise would make clear that they are unwilling to follow through on their concerns with action.
Amendment 4 would make clear that sentencing guidelines on pre-sentence reports must not include consideration of a defendant’s status as part of a group that has experienced historical or intergenerational trauma. Why is this necessary? It would be deeply wrong to allow collective historical grievances to influence the sentencing of an individual today. This area is the latest frontier of identity politics, with the public being told that what should be given disproportionate focus in all sorts of domains—that what matters more than what is happening today, with the whole variety of challenges facing people of all creeds and colours—is, in fact, the past. Sentencing must focus on the actions, culpability and direct personal circumstances of the defendant before the court, not on sweeping assumptions based on historical events.
We are not able in this Bill to legislate across all the workings of the criminal justice system as much as we might like to. The events of the past few months have shown that what has happened with these guidelines was not a one-off. There is a creeping, systemic attempt to inject identity politics into our judicial processes, bail decisions, probation, and even training materials. If we do not confront this now, it will embed itself deeper and deeper into the foundations of our system. It is fundamental to the rule of law that justice looks to the individual, not to the group. It is fundamental that we deal in evidence, not in ideology.
Taken together, our amendments are designed to strengthen this Bill, to ensure that it is not merely a reactive measure, but, in this narrow area at least, provides lasting protection of the principle that justice must be blind, and must be seen to be blind. The public expect justice to be equal, not preferential. Our amendments will go further in helping to secure that.
We are in this Chamber today because the Lord Chancellor was not paying attention, and was then humiliated by the recalcitrant leadership of an unelected body turning its face against parliamentary and public concern. The Government should have acted decisively and immediately and we provided them with an opportunity to do so, but they failed to take it. Even now, we are faced with a Bill that does not do the full job. Our amendments are closing the gap between what the Lord Chancellor is offering and what is necessary—decisiveness in place of timidity. I urge the whole House and the Government to support them.
The Parliamentary Under-Secretary of State for Justice (Sir Nicholas Dakin)
It is a pleasure to serve with you in the Chair, Mrs Cummins. I wish to thank hon and right hon. Members for the points that have been made and the amendments that have been discussed, which I shall respond to in turn. I shall speak briefly to each clause and then remind us of why we are here debating this Bill.
In the last Parliament, the Sentencing Council consulted on a revised imposition guideline, which was due to come into effect on 1 April. The revised guideline includes additional guidance on when courts should request pre-sentence reports. It notes that pre-sentence reports will “normally be considered necessary” for certain offenders, including those from an ethnic, cultural or faith minority. The “normally be considered necessary” is replaced with “may be particularly important”, which the previous Government very much welcomed.
This Government note that a pre-sentence report is necessary. They agree that disparities exist in the criminal justice system. The reasons for that are unclear, but this is a matter for the Government, accountable to Parliament and to the ballot box, to address.
In effect, the revised guideline could have led to judges deciding whether to request a pre-sentence report based on an offender’s faith or the colour of their skin. The Lord Chancellor has been clear that this would be unacceptable, as it risks differential treatment. Singling out one group over another undermines the idea that we all stand equal before the law—a principle that has been in the foundations of our justice system for centuries, and that is why she acted immediately and quickly. By preventing the Sentencing Council making guidance on pre-sentence reports with reference to personal characteristics, this Bill helps to ensure equality before the law.
Clause 1 amends section 120 of the Coroners and Justice Act 2009. It provides that sentencing guidelines may not include provision framed by reference to different personal characteristics, including race, religion, belief or cultural background. Therefore, any existing guidelines that make reference to different personal characteristics will cease to have effect and the Sentencing Council is prevented from making such provisions in guidelines in the future.
The changes made by this clause prevent the Sentencing Council making policy about when pre-sentence reports should be obtained that risks differential treatment before the law, and which could undermine public confidence in the criminal justice system.
The sentencing code is clear that courts should obtain pre-sentence reports unless, in the circumstances of the case, it is unnecessary. The clause does not affect the independent judiciary’s ability to make decisions based on the personal circumstances of an individual offender, or determine where pre-sentence reports are necessary or desirable. Nor does it stop the Sentencing Council from advising, in general terms, that pre-sentence reports are sought in cases where the court would benefit from an assessment of an offender’s personal circumstances.
Catherine Atkinson (Derby North) (Lab)
Pre-sentence reports, as the Minister has set out, are important in considering punishments that can address offending behaviour and help reduce the likelihood of reoffending. But, very often, probation is stretched so thin that officers do not have time to complete them. What will the Minister do to ensure that, where a pre-sentence report is required, probation has the capacity to do that important work?
Sir Nicholas Dakin
My hon. Friend echoes much of what the hon. Member for Eastbourne (Josh Babarinde) picked up on earlier. Probation is a significant part of the landscape. That is why we are onboarding 1,300 more probation officers over the next year.
The Chair of the Justice Committee, my hon. Friend the Member for Hammersmith and Chiswick (Andy Slaughter), raised issues about the impact of the guidelines on existing guidelines. We expect that other guidelines will be affected by the Bill, including offence-specific guidelines related to mitigating and aggravating factors, which set out guidance about pre-sentence reports for specific cohorts. We will continue working with the Sentencing Council on the implementation of the Bill. We have had constructive discussions and will continue to do so.
As my hon. Friend the Member for Hammersmith and Chiswick referenced, the Bill’s explanatory notes point out, existing precedent is not changed where the courts have determined that pre-sentence reports are necessary or desirable. Such cases include: Thompson, where the Court of Appeal recently emphasised the importance of reports in sentencing pregnant women or women who have recently given birth; Meanley, in which the court referenced the value of pre-sentence reports for young defendants; and Kurmekaj, where the defendant had a traumatic upbringing, a vulnerability and was a victim of modern slavery. The Bill narrowly focuses on the issue at hand, putting beyond doubt the principle that we all stand equal before the law of the land.
Clause 2 is concerned with details about how the Bill will be enacted. The Bill will apply to England and Wales only, and its measures will come into force on the day after it passes. The Bill may be cited as the Sentencing Guidelines (Pre-sentence Reports) Act 2025 once enacted.
I thank the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright) for tabling his amendments and for the very thoughtful and comprehensive way in which he dealt with them. Amendments 1 and 2 would replace the term “personal characteristics” with “demographic cohort” to describe the type of provision about pre-sentence reports in sentencing guidelines that the Bill will prohibit. The Government have considered the proposed change to the wording very carefully and would like to take the opportunity to briefly explain the Government’s approach.
The Government’s objective is to help ensure equality before the law so that offenders are treated according to their own particular circumstances and not by virtue of their membership of a particular group. To ensure that the Bill prevents sentencing guidelines about pre-sentence reports including provision framed by reference to any specific personal characteristics of an offender, we have used the term “personal characteristics”. The Bill sets out that personal characteristics include race, religion or belief, or cultural background. However, this is not an exhaustive list. We accept that personal characteristics and personal circumstances have, over the years, been elided in different court judgments, and we are clear that it is intended to cover a wider range of characteristics including sex, gender identity, physical disabilities and pregnancy status.
The right hon. and learned Member for Kenilworth and Southam has rightly noted that the term “demographic cohort” is used in the Bill’s explanatory notes. However, the use of the term was not intended to narrow the definition of personal characteristics, and I believe it does not, though I note that he believes that it might do. Rather, it is a different term used to describe individuals who share certain personal characteristics.
Sir Jeremy Wright
I accept that the Minister is trying to give us clarity, so for the purposes of clarity is it the Government’s view that all personal characteristics can also be described as personal circumstances?
Sir Nicholas Dakin
No, that is not the Government’s view. “Personal characteristics” is a term that is understood and applied in other contexts, whereas “demographic cohort” is a term that, on balance, the Government feel is more imprecise and would ultimately need to be defined with reference to a group with shared personal characteristics. Therefore, I understand where the right hon. and learned Gentleman is coming from, but from the Government’s point of view, the amendments do not add anything to the drafting of the Bill and risk causing further confusion. As he pointed out in his helpful contribution, there is a danger of getting into detailed semantics, which probably does not help any of us.
Sir Jeremy Wright
I take on board the Minister’s warning, and I am not sure whether this will make it any better. I think he is saying that the term demographic cohort is a subset of personal characteristics, but personal characteristics are not the same as personal circumstances. Is that right?
Sir Nicholas Dakin
If we had used the phrase demographic cohort, we would have to define what that means, whereas personal characteristics is a phrase that already has a level of definition and is therefore preferred by the Government.
I turn to the similar issue raised by my hon. Friend the Member for Hammersmith and Chiswick. We carefully considered whether the Bill should be narrower than referring to personal characteristics—for example, an offender being from a cultural minority—but in the end we felt that was not helpful.
As such, while I am grateful to the right hon. and learned Member for Kenilworth and Southam for suggesting alternative wording, the Government remain of the view that, having considered it carefully, the term personal characteristics is the most appropriate way of capturing the issues raised by the guideline.
Andy Slaughter
Will the Minister clarify the point in relation to pregnancy? He said—it is in the explanatory notes—that it would be right for a sentencer to follow Thompson and order a pre-sentence report where a woman is pregnant or has recently given birth, but that, following the passage of the Bill, it will be incorrect for the Sentencing Council to make recommendations along those lines for sentencers to follow. I do not quite see the difference.
Sir Nicholas Dakin
The Court of Appeal has made it clear, and, as my hon. Friend said, it is right to follow Thompson in those circumstances.
While I am grateful to the right hon. and learned Member for Kenilworth and Southam for raising and rightly exploring this issue in Committee, I hope that he will not press the amendment to a vote.
Amendment 3, tabled by the right hon. Member for Newark (Robert Jenrick) on behalf of the official Opposition, would require the Sentencing Council to obtain the Secretary of State’s approval before issuing any sentencing guidelines about pre-sentence reports. Again, I referenced the helpful words of the right hon. and learned Member for Kenilworth and Southam, who said we should tread carefully in this territory and that the separation of powers needs to be very much respected. Therefore, while carefully considering the case for mandating that the Sentencing Council obtain the Secretary of State’s approval, I am not persuaded that that is appropriate at this particular time.
As the Lord Chancellor has set out, this case has highlighted that a potential democratic deficit. That is why we are currently assessing the Sentencing Council’s wider role and powers for developing sentencing guidelines, with recent developments and imposition guidelines in mind.
Dr Mullan
I gently suggest to the Minister that if there is a risk of a democratic deficit, surely the thing to do is to act now in the short term and unpick it later if he feels he has overreached.
Sir Nicholas Dakin
We certainly do not feel that we have overreached. We are acting in a timely and effective way. As the debate has demonstrated, there are issues of detail that need to be properly explored. The Lord Chancellor has done the right thing in announcing a review that will have a look at things in proper time; that will take place.
Given the special role of the Sentencing Council and the significant policy and constitutional issues involved, it is right that we take the time to consider whether more fundamental reform is needed, alongside considering wider recommendations that come out of the independent sentencing review. I am not convinced that it will be proper to deal with the issue now through this fast-tracked legislation, nor am I convinced that legislating in a piecemeal way would be helpful, noting that the amendment of the right hon. Member for Newark applies just to sentencing guidelines about pre-sentence reports when there may be other things that we need to look at. To be clear, we are keeping all options on the table and are willing to legislate further in a more comprehensive way if necessary. I therefore urge the Opposition not to press this amendment.
Amendment 4, also tabled in the right hon. Member’s name, would prevent the Sentencing Council from framing sentencing guidelines about pre-sentence reports with reference to groups that may have experienced trauma from historical racism or discrimination. While we have carefully considered the case for adding this restriction to the Bill, we are not persuaded that it is necessary. We have taken a general approach in the Bill to preventing sentencing guidelines about pre-sentence reports from being framed by reference to any personal characteristic of an offender. The Bill specifies that personal characteristics include race, religion or cultural background, but that is not an exhaustive list.
More widely, I appreciate that the right hon. Member for Newark has taken a keen interest in wider guidance across prisons and probation that touches on different experiences, including those specified in the amendment. The Government are absolutely clear on the need to ensure equality before the law. Wider work is going on to review relevant policy and guidance, and we will update practices where necessary. I therefore urge the Opposition not to press the amendment.
New clause 1 would require the Secretary of State to arrange an independent review into the restrictions the Bill places on the Sentencing Council’s ability regarding pre-sentence reports, which are framed by reference to offenders’ different personal characteristics. I thank the hon. Member for Eastbourne for tabling the new clause. Although we have carefully considered the case for such a review and I agree that it is important to carefully think through what the Bill’s effects, I am not persuaded that a review is necessary because the direct changes made by the Bill are very limited in nature.
To recap, the Bill helps protect equality before the law by ensuring no offender receives differential treatment regarding pre-sentence reports based on their personal characteristics. That reflects a fundamental principle that does not need to be reviewed. The Bill does that by restricting the powers of the Sentencing Council to issue sentencing guidelines about pre-sentence reports. It will prevent guidelines from, for example, creating a presumption around whether a pre-sentence report should be obtained based on an offender’s personal characteristics, rather than all the circumstances of the offender before the court.
For the avoidance of doubt, this Government support the use of pre-sentence reports and we have publicly committed to creating more capacity in the probation service to ensure it is able to do the valuable work that includes preparing pre-sentence reports. We are also happy to continue to work with the hon. Member for Eastbourne on disparities in the criminal justice system and the use of pre-sentence reports more generally.
We fully support the increased use of PSRs in our courts. PSRs include an assessment of the offender’s behaviour and the risk they pose, and the recommendations for sentencing options. It is a valuable tool, as many Members have said, in helping to ensure a sentence is tailored to an individual offender and their circumstances.
Equality before the law is a fundamental principle of our criminal justice system. It is the Government’s policy and belief that that should be protected. I again welcome the contribution from the Mother of the House, my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott), supported by the hon. Members for Brighton Pavilion (Siân Berry) and for Birmingham Perry Barr (Ayoub Khan), to keep our feet to the fire on tackling disproportionality. I confirm again that this Government take very seriously tackling disproportionality in the criminal justice system. That is why the Lord Chancellor has commissioned a review of the data on disparities in the justice system to better understand the drivers of the problem. I know that my right hon. Friend does not need my encouragement to keep going on this one, so I look forward to her continuing to hold us to account as we move forward.
I will also be clear on what the Bill does not do, to underscore its limited changes. Nothing in the Bill restricts the court’s pre-existing ability to request pre-sentence reports, nor the Sentencing Council from advising in general terms that a pre-sentence report should be sought where a further assessment of the offender’s personal circumstances would be beneficial to the court. The Bill does not affect Court of Appeal case law about the types of cases where pre-sentence reports are necessary or desirable, as we have covered previously. There is recent relevant case law covering vulnerable defendants, pregnant women and women who have recently given birth, and young defendants. Furthermore, the Bill will not prevent judges from requesting pre-sentence reports in cases where they ordinarily would, including in appropriate cases involving, for example, pregnant women, as well as those involving young people or domestic abuse. I welcome the comments from my hon. Friend the Member for Chipping Barnet (Dan Tomlinson) on those issues.
With such considerations in mind, the Government do not consider the proposed review to be necessary. However, as the Lord Chancellor has set out, she is carrying out a review into the wider role and powers of the Sentencing Council, so I can reassure the hon. Member for Eastbourne that there will be further opportunities to discuss issues surrounding the Sentencing Council in the House. I therefore hope that he will withdraw the new clause.
The First Deputy Chairman of Ways and Means (Judith Cummins)
I call Sir Jeremy Wright to wind up.
Sir Nicholas Dakin
I beg to move, That the Bill be now read the Third time.
Let me first take this opportunity to thank all Members of this House who have spoken in support of this important Bill. I am particularly grateful for the support expressed on Second Reading, as well as to all the hon. and right hon. Members who have contributed to this afternoon’s Committee proceedings. It is not yet a month since the Sentencing Council’s imposition guideline was due to come into effect. The Lord Chancellor followed up her concerns immediately with action. As Members from all parts of the House have acknowledged, had the Government not acted quickly to introduce this Bill, the guideline would have risked differential treatment before the law in this country.
I put on record my thanks to the Sentencing Council and in particular its chair, Lord Justice William Davis, for the constructive conversations on this issue and for pausing the guideline while Parliament had its say, as it is doing today. I also thank officials who have worked on this Bill, including Andrew Waldren, Stephen Toal, Jack Hickey, James Metter, Clare Taylor, as well as the Bill manager, Katherine Ridley, and my excellent private secretary, Emily Brougham. This Government strongly support the use of pre-sentence reports, which judges are required by law to obtain except in circumstances where they consider such a report unnecessary. We also acknowledge that there are disparities within the criminal justice system that must be addressed. However, those are matters of policy, and it is right for the Government to seek a policy response to these issues. That is why we brought this Bill forward, and I commend it to the House.
Sentencing Guidelines (Pre-sentence Reports) Bill
(Limited Text - Ministerial Extracts only)
Read Full debateWednesday 7th May 2025
(1 week, 1 day ago)
Lords ChamberSentencing Guidelines (Pre-sentence Reports) Bill 2024-26 Read Hansard Text Watch Debate Amendment Paper: Committee of the whole House Amendments as at 30 April 2025 - (30 Apr 2025)
This text is a record of ministerial contributions to a debate held as part of the Sentencing Guidelines (Pre-sentence Reports) Bill 2024-26 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
My Lords, I want to extend my thanks to the many noble Lords who have already contributed to debates in this House on this matter, which have provided me and the Government with valuable food for thought. I am also grateful to the noble Lords with whom I have spoken about this Bill, who have shared their wise counsel and wealth of experience regarding the matters on which it touches.
I know that all noble Lords will be looking forward to my noble friend Lady Nichols’ maiden speech. I welcome her to this place, and I know we will all benefit from her vast experience in public service.
I will start by recapping how we got here, as I believe that it is important to understand the Government’s intention behind the Bill. The Sentencing Council’s imposition of community and custodial sentences guideline helps judges, when sentencing an offender, to determine whether to impose a community order or a custodial sentence. In deciding which threshold has been met, judges are required by law to obtain a pre-sentence report, except in circumstances where the court considers such a report to be unnecessary. Pre-sentence reports are used to give the courts more context for the offending behaviour in a given case to aid judges and magistrates in making informed sentencing decisions. The current imposition guideline makes it clear that pre-sentence reports offer valuable assistance to the court when it decides whether to impose a community or custodial sentence.
Under the last Government, the Sentencing Council consulted on a revised imposition guideline. This guideline was due to come into effect on 1 April this year and includes additional guidance on when courts should request pre-sentence reports. It noted that pre-sentence reports will “normally be considered necessary” for certain offenders, including those from an ethnic, cultural or faith minority. In effect, this could have led to offenders receiving differential treatment in terms of access to pre-sentence reports based on their faith or the colour of their skin. These changes were welcomed by the previous Administration.
By contrast, both the Lord Chancellor and I have been clear that that would be unacceptable—not least for the victims, who put their trust in the criminal justice system. Singling out one group over another undermines the idea that we all stand equal before the law, a principle that has been at the forefront of our justice system and our society for centuries. This is the position that the Lord Chancellor communicated in person and in writing to the Sentencing Council. The Lord Chancellor first used her existing power, meeting the Sentencing Council’s chair on 13 March to ask it to reconsider its approach. Unfortunately, the council declined to amend the guidelines significantly or re-consult on its approach. While the Sentencing Council remains of a different opinion from the Government, I am grateful to its chair, Lord Justice Davis, for the engagement he has had with the Lord Chancellor and for the cordial conversations that I know we will continue to have.
I am very thankful that, following its engagement, the Sentencing Council has paused implementation of the revised imposition guideline while Parliament has its say. I am also grateful to noble Lords who have shared their expertise in this area with me. It is clear that the intention behind the Sentencing Council’s changes to the guidelines was an honourable one: to address the inequalities in our justice system. The issue of disparities in the criminal justice system is a serious matter, and one which this Government are determined to address.
However, this is a question of policy, one which must be addressed by government, accountable to the public and Parliament, and via the ballot box. As noble Lords will be aware, this issue has prompted debate here, in the other place and publicly on the correct roles and responsibilities of the Sentencing Council, and the Lord Chancellor is carefully reviewing and considering all options. I am sure that that will be discussed more in your Lordships’ House in the months ahead.
However, I want to be clear that this is beyond the scope of the narrow Bill at hand today. The Sentencing Council, although only 15 years old, holds an important position within the justice system, and any changes to its function and powers must be considered carefully. I know that several noble and learned Lords have had roles on the Sentencing Council and its predecessor and will have valuable views to add as this is considered. It would not have been right to address this through this targeted and narrow legislation.
I am proud of our judiciary, and I know that they are the envy of the world: rightly respected for their independence, impartiality and fairness. I know that the Lord Chancellor takes her oath to defend the independence of the judiciary very seriously. I reassure noble Lords that nothing we are considering in terms of the future of the Sentencing Council will change the Government’s clear commitment to defend the rule of law.
I turn now to what the Bill does. Clause 1 amends Section 120 of the Coroners and Justice Act 2009. It provides that sentencing guidelines about pre-sentence reports may not include provision framed by reference to offenders’ different personal characteristics, including race, religion, belief or cultural background. This would mean that any existing guidelines on pre-sentence reports which are framed by singling out personal characteristics would cease to have effect.
The Sentencing Council will therefore not be able to make such provision in future guidelines. The changes made by this clause therefore prevent the Sentencing Council making policy about when pre-sentence reports should be obtained. That would risk differential treatment before the law and would undermine public confidence in the criminal justice system.
In bringing forward the Bill, the Government’s objective is to help ensure equality before the law, so that offenders are treated according to their individual circumstances and not by virtue of their membership of a particular group. We have therefore used the term “personal characteristics” in the Bill to ensure that sentencing guidelines about pre-sentence reports cannot include provision framed by reference to any specific personal characteristic of an offender, and we have accompanied this by listing some characteristics in the Bill, including race, religion or belief, or cultural background.
However, this is a non-exhaustive list, intended to give context to the term. The Government intend that the Bill will also apply to a wider range of characteristics including sex, gender identity, physical disabilities and pregnancy. We have also used the term “demographic cohort” in the Bill’s Explanatory Notes, to help provide additional context to the meaning of “personal characteristics”.
I will now make clear what the Bill does not do. It does not interfere with the courts’ duties to obtain a pre-sentence report in appropriate cases—for example, those involving primary carers and victims of domestic abuse. The Bill does not interfere with the courts’ ability to request a pre-sentence report. The Sentencing Code is clear that courts must obtain pre-sentence reports unless they consider it to be unnecessary. The Bill does not affect this presumption. The independent judiciary will retain discretion to make decisions about where pre-sentence reports are necessary based on the facts of the case. The Bill does not stop the Sentencing Council advising, in general terms, that pre-sentence reports should be sought in cases where the court would benefit from an assessment of an offender’s personal circumstances.
Also, as detailed in the Explanatory Notes, the Bill does not change existing precedent where the courts have determined that pre-sentence reports are necessary or desirable. Recently, in R v Thompson, the Court of Appeal emphasised their importance in sentencing pregnant women or women who have recently given birth. In R v Meanley, the court referenced the value of pre-sentence reports for young defendants. In R v Kurmekaj, the defendant had a traumatic upbringing and vulnerability, and was a victim of modern slavery. The court considered that these factors meant that a pre-sentence report should have been requested. Instead, the Bill narrowly focuses on the issue at hand.
I welcome the use of pre-sentence reports, which are a valuable tool for sentencers in appropriate cases. The number of pre-sentence reports declined by 44% between 2013 and 2023. The Probation Service is under a huge amount of pressure, which is indicative of wider capacity issues in the system. This Government have acted quickly to create capacity within the Probation Service to ensure that our hard-working probation officers have more time for vital work such as this. We have announced plans to recruit a further 1,000 probation officers in the coming year, on top of the 1,300 extra probation officers recruited in the last financial year. I am continuing to work with the Probation Service to ensure that it can deliver a high and consistent standard of service.
We are also working to better understand what drives disparities in the criminal justice system. The Sentencing Council has acknowledged that the causes of disparities in sentencing outcomes are “unclear”. Understanding the data is the key first step to deciding what we must do to address these disparities. The Lord Chancellor set out during the Bill’s Second Reading in the other place that she has commissioned a review of the data held by the Ministry of Justice on disparities in the justice system. On the timeline for the review, noble Lords can rest assured that we are working at pace on this and will update the House in due course. I assure your Lordships that this is an issue which the Government take incredibly seriously and are determined to address. However, this cannot be done at the expense of equality before the law.
In conclusion, by preventing the Sentencing Council making guidelines on pre-sentence reports with reference to personal characteristics, this Bill ensures that we all continue to stand equal before the law. I urge noble Lords to support the Bill and the principle that drives it—of equality before the law. I beg to move.
Lord Timpson (Lab)
I start my closing speech by paying tribute to the noble and learned Lord Etherton. Being relatively new to this place, I never got to know him, but it is clear how much he was deeply respected and admired. He has been described as a kind person, which is something that I hope one day would be my epitaph.
I thank noble Lords for their valuable contributions over the course of today’s debate. The depth of knowledge and experience in this House has certainly been on full display. It has also been a pleasure to be in this place for the maiden speech of my noble friend Lady Nichols of Selby. I warmly welcome her to this place and look forward to working with her in the years to come, as she clearly has a lot to contribute.
I thank noble Lords who have raised perceptive questions over the course of today’s debate and those who have spoken to me privately. I hope they will feel that I have addressed their points in my closing remarks. If I do not cover them now, I will follow up in writing to address their points. As the noble and learned Lord, Lord Hope, said, words matter. I hope that my closing words matter and are helpful in answering noble Lords’ questions.
As I set out in my opening speech, the Sentencing Council’s revised imposition guideline risked differential treatment before the law. As we have discussed, this Bill is not about the wider role and powers of the Sentencing Council. It is not about restricting the use of pre-sentence reports. In fact, this Government are committed to increasing the use of pre-sentence reports. Rather, it is about the very specific issue of the Sentencing Council issuing guidelines on pre-sentence reports with reference to an offender’s personal characteristics, rather than all the relevant facts and circumstances of the case.
A number of noble Lords, including the noble and learned Lord, Lord Phillips, the noble Baroness, Lady Hamwee, the right reverend Prelate the Bishop of Gloucester and the noble Lord, Lord Bach, have asked why this Bill is necessary and whether it was possible to resolve the matter with the Sentencing Council without primary legislation. In response, I would explain that we first exhausted all other options prior to introducing this legislation. The imposition guideline was due to come into effect on 1 April this year. Ahead of this, the Lord Chancellor used her existing power to ask the Sentencing Council to reconsider. Unfortunately, the Sentencing Council declined to revise the draft guideline. It was right, at that point, to act quickly to introduce the legislation.
As a result, the Sentencing Council decided to put the guideline on pause while Parliament rightly has its say, and we are grateful to it for doing so. By acting quickly, we prevented a guideline coming into effect which risked differential treatment before the law. This legislation has been necessary to achieve that and to clarify this Government’s commitment to equality before the law.
Noble Lords, including the noble Lord, Lord Beith, have questioned the scheduling of this Bill. I reassure noble Lords that the dates for Committee and Report have been agreed in the usual channels in the usual way.
The noble Lord, Lord Jackson of Peterborough, the right reverend Prelate the Bishop of Gloucester, the noble Baroness, Lady Fox, and my noble friend Lady Mattinson have spoken about the importance of trust and consistency in the justice system. As the speed with which we introduced the Bill demonstrates, this Government are definitive in their stance with regard to equality before the law. The issues that have been raised with regard to disproportionality in our justice system are the domain of government, politics and Parliament. This Bill serves to reassert our ability to determine this country’s policy on the issue of equality of treatment before the law.
As my noble friend Lady Mattinson set out, we must work to preserve trust in our excellent legal system. I thank her for sharing her considered views on this. It is essential to victims that they are able to trust our legal system and know that everyone will be treated equally before the law. Implementing a sentencing guideline that could lead to differential treatment before the law puts trust in the legal system at risk, which is why we acted quickly to address this.
To address the question from the noble Lords, Lord Jackson and Lord Wolfson, about what this Bill means for the future of the Sentencing Council, I reiterate that the Sentencing Council has done valuable work, bringing consistency to judicial decision-making. However, developments on the imposition guideline have clearly revealed a potential issue, where the council is dictating policy that is not this Government’s and that does not express the will of Parliament. The Lord Chancellor is therefore reviewing the powers and function of the Sentencing Council. It would not be appropriate to deal with that wider issue through fast-track legislation, given the significant policy and constitutional issues involved. It is right to take the time to consider more fundamental reform like this. The Lord Chancellor will be considering all options and I know that many in your Lordships’ House will have valuable experience to contribute.
The noble Baroness, Lady Hamwee, and other noble Lords asked how this Bill interacts with the review of sentencing being led by David Gauke and ably supported by the noble and learned Lord, Lord Burnett. I reassure noble Lords that this Bill will not have any impact. This Bill is addressing the specific matter at hand regarding the Sentencing Council guidelines. The sentencing review is a wider review of sentencing, and we look forward to considering its recommendations in due course.
I turn now to the questions over the detail of the Bill, which were raised by the noble and learned Lords, Lord Thomas and Lord Hope, the noble Lords, Lord Verdirame, Lord Beith, Lord Bach and Lord Wolfson, and the noble and right reverend Lord, Lord Sentamu. What is clear from this debate is the Government’s objective to help ensure equality before the law. We are clear that an offender should be judged by a court on an individual basis, according to the particular facts and circumstances of their case. It is not for the Sentencing Council to set out in guidance that judgments should be made on the basis of personal characteristics such as race or ethnicity.
The Government have used the broad term “personal characteristics” to make it clear that any reference to preferential treatment for particular cohorts is unacceptable. The Bill states that personal characteristics include race, religion or belief, and cultural background, but these are examples and not a comprehensive list. “Personal characteristics” is intended to include a wide range of characteristics, such as sex, gender identity, physical disabilities and pregnancy status. This is broader than the concept of “protected characteristics” in the Equality Act, which is a closed list and not wide enough to address, for example, the reference in the guideline to being a member of a cultural minority.
After careful consideration, the Government have therefore concluded that the most appropriate and principled way to respond to the issues raised by the guideline is to use the broader concept of “personal characteristics” in the Bill. The term “demographic cohort” is used in the Bill’s Explanatory Notes. However, the use of “demographic cohort” was not intended to, and I believe does not, narrow the definition of “personal characteristics”. A demographic cohort is a way of describing people who share certain personal characteristics. It is used in the Explanatory Notes to provide additional context to the Bill, but it would not be an appropriate alternative to the current drafting and would, in my view, raise further difficult questions of definition regarding what amounts to a “demographic cohort”. The term “personal characteristics” is used and understood in other contexts, and the Government consider it is the best formulation to address the issues raised by the guideline.
The noble Lord, Lord Bach, raised concern over whether this Bill interferes with judicial independence. To be clear, this Bill does not in any way influence individual sentencing decisions. Individual sentencing decisions clearly remain a matter for the independent judiciary. However, as I have said previously, the issue of tackling disproportionate outcomes within the criminal justice system is a policy matter and should be addressed by Government Ministers. The narrow change introduced by the Bill targets aspects of the sentencing guidelines that relate to equality of inputs. We are therefore addressing a policy matter and are not encroaching on judicial independence.
It is regrettable that some of the recent debate has strayed into comments about individual judges and their decision-making. I know that the noble Lord, Lord Bach, will be reassured that this Government will always support judges to do their jobs independently. I know that the Lord Chancellor takes her duty to defend judicial independence very seriously. As a number of noble and noble and learned Lords have said today, we are very lucky to have a world-class and highly regarded judiciary.
The noble Baroness, Lady Hamwee, the right reverend Prelate the Bishop of Gloucester, the noble Lord, Lord Marks, and the noble Baronesses, Lady Fox and Lady Nichols of Selby, have rightly raised concerns about probation capacity, which is something that I think about in my role on a daily basis. One knock-on effect of this is the consistency and quality of pre-sentence reports. This Government support the wider use and improvement of pre-sentence reports within our courts. I agree with the noble Lord, Lord Jackson, that they can be valuable in all cases and for all defendants, regardless of their membership of a certain cohort, and should be obtained unless a judge believes that they are unnecessary. We are committed to ensuring that pre-sentence reports are available when needed.
The noble Baroness, Lady Hamwee, asked what will happen to pre-sentence reports that are being prepared when the Bill comes into effect. I reassure her that there will be no impact on pre-sentence reports in the process of being prepared. This Bill is not about the ability of a court to request a pre-sentence report. The test remains that, under section 30 of the Sentencing Code, a PSR should be requested unless it is considered unnecessary. This is about council guidelines and the need to protect the principle of equal treatment before the law.
We have publicly outlined the steps we are taking to increase capacity in the Probation Service to enable it to undertake more valuable work such as this. Next year, we will bring 1,300 additional new trainee probation officers on board, but as noble Lords are well aware, and I have spoken to a number of noble Lords privately about this, it takes time to train and induct new staff to allow them to become the brilliant probation officers we so highly value. I have a lot to do to help our fantastic probation staff achieve what we know is possible in the service.
To support our probation staff, we are embracing technology, including AI. Work is ongoing that is improving the flow of information—so critical to an accurate assessment of an offender’s risk—and new tools are beginning to strip away a probation officer’s administrative burden. There is much more work still to do. However, given the challenges the Probation Service faces, new staff and better processes are not sufficient on their own. We need to think about how we use the Probation Service, which faces a case load of just over 250,000 offenders, more effectively.
The theme of the debate, highlighted by the noble Lord, Lord Marks, has been tackling disproportionality across the criminal justice system. We know that more must be done to address inequalities and we are committed to tackling racial disparities, as I am sure the noble Baroness, Lady Jones, will be pleased to hear. As the Lord Chancellor set out in the other place, and the noble Lord, Lord Wolfson, has questioned, she has commissioned a review into the data held by the Ministry of Justice on disparities, and we will carefully consider next steps. We are also taking action to increase diversity in our staff and working with the judiciary to make sure that our appointments are reflective of the society we serve. This has included supporting underrepresented groups to join the judiciary.
A particular concern was raised by the noble Baroness, Lady Jones, about how the Bill may impact on women—in particular, pregnant women. As the chair of the Women’s Justice Board, I have paid particularly close attention to this matter and have also spoken with board members. To be clear, nothing in the Bill prevents judges requesting pre-sentence reports for pregnant women, nor will it affect Court of Appeal case law, which states that a pre-sentence report is desirable in the case of pregnant or postnatal women. Judges will therefore continue to be able to request pre-sentence reports in cases where they ordinarily would, including, for example, appropriate cases involving pregnant women, and we expect this to continue. We are committed to achieving equal outcomes for women.
In conclusion, this is a targeted and specific Bill which serves to protect the important principles of equality before the law. I thank all noble Lords who have taken part in this debate and I look forward to engaging with them as the Bill progresses.
Baroness Hamwee (LD)
My Lords, before the Minister moves the Second Reading, he told the House, in justifying why the term “personal characteristics” is used here, that it is used in a number of contexts. I do not expect him to answer in detail now, but will he write to the House to explain what those contexts are so that we have them in our minds as well?
Lord Timpson (Lab)
I will very happily write. As noble Lords are aware, I am not an expert on the finer details of the law, so that would actually help me as well. I beg to move.