Sentencing Council Guidelines

Monday 17th March 2025 Commons Chamber

15:41

[Robert Jenrick (Newark) (Con)]

(Urgent Question): To ask the Secretary of State for Justice if she will make a statement on the Sentencing Council’s publication of community and custodial sentences guidelines.

[The Parliamentary Under-Secretary of State for Justice (Sir Nicholas Dakin)]

The Sentencing Council is independent of Parliament and Government. The council decides on its own priorities and workplan for producing guidelines.

The Sentencing Council consulted the previous Government on a revised version of the imposition guideline, which included new guidance on pre-sentence reports. That consultation ran from November 2023 to February 2024. The previous Government responded to the consultation on the guideline on 19 February 2024. The former sentencing Minister, the hon. Member for Orpington (Gareth Bacon), who is now the shadow Transport Secretary, wrote to the chair of the Sentencing Council thanking him for the revisions to the guideline. In particular, he thanked the council for fuller guidance on the circumstances in which courts should request a pre-sentence report.

The Lord Chancellor was clear about her discontent with the guideline when it was published. It is our view that there should not be differential treatment before the law. The House will be pleased to hear that the Lord Chancellor met the chair of the Sentencing Council last week, and the discussion was constructive. It was agreed that the Lord Chancellor will set out her position more fully in writing, which the Sentencing Council will consider before the guideline is due to come into effect.

[Robert Jenrick]

In just 14 days, new two-tier sentencing rules will come into force. These sentencing rules will infect our ancient justice system with the virus of identity politics, dividing fellow citizens on the basis of their skin colour and religion. The rules will ride roughshod over the rule of law and destroy confidence in our criminal justice system. The stakes are high, but the Justice Secretary seems clueless—in fact, she is not even here. Has the Department conducted an assessment of the additional pre-sentence reports that will be required and the impact of that on the Probation Service, given that it is already working above capacity? Is it considering providing the Probation Service with additional resources to cope with the extra demand? Does it expect the additional pre-sentence reports to lead to further delays in our courts?

I ask these questions because not only do these new rules violate the most foundational principle of equality before the law, but they also create immense pressure on the criminal justice system. If the Justice Secretary wanted to stop two-tier justice, she would have supported my Bill on Friday. She would have used her powers of appointment to sack the individuals who drafted the rules. Time is running out, and so is confidence in the Sentencing Council. Frankly, the public are losing confidence in the Justice Secretary and her Ministers, too.

I cannot escape the conclusion that the Justice Secretary actually supports these two-tier sentencing rules. Why? Because she supported a group that called the criminal system institutionally racist. Her representatives walked through the two-tier guidance and approved it, and she refuses to legislate to block the guidance coming into force or to take any sanction against the members of the Sentencing Council that drafted it. If there is one thing we know about Labour Governments, it is that they always end in tears. This time, it is a second-tier Justice Secretary pursuing two-tier justice, all to suck up to her boss, two-tier Keir.

[Sir Nicholas Dakin]

There is one thing that we know about Labour Governments: they always have to clear up the mess left by Conservative Governments. That is what the Lord Chancellor is doing at the moment. She is clearing up the mess left by the previous Government: the clogged-up the courts, the overflowing prisons and the overworked Probation Service.

Getting back to the facts of the case, the Lord Chancellor met the Sentencing Council last Thursday and had a constructive discussion. It was agreed that she will set out her position more fully in writing, which the Sentencing Council will then consider before the guidance is due to come into effect. This is serious government, not auditioning for government. The Conservatives were not only consulted; they welcomed these guidelines when they were in office. The former Minister for sentencing wrote a letter of welcome to the Sentencing Council setting this out on 19 February 2024. There is a process in place now that needs to be allowed to play out. We will not pre-empt that process.

[Mr Speaker]

I call the Chair of the Justice Committee.

[Andy Slaughter (Hammersmith and Chiswick) (Lab)]

The Sentencing Council is—it should not need saying—a non-political body whose guidelines are carefully drafted and widely consulted on. These guidelines received positive responses from the Justice Committee under its previous Chair and from the previous Government. They do not require that a pre-sentence report is ordered, they do not limit who should be the subject of such a report and they do not tie the hands of the sentencer. Does my hon. Friend agree that by dragging the Sentencing Council into the political arena without good cause, the shadow Justice Secretary degrades both the Sentencing Council and himself?

[Sir Nicholas Dakin]

My hon. Friend the Chair of the Select Committee makes a good point about the way in which the shadow Justice Secretary conducts himself. The important thing is that the Lord Chancellor had a constructive meeting with the chair of the Sentencing Council and there is now a process in place to address this issue.

[Mr Speaker]

I call the Liberal Democrat spokesperson.

[Josh Babarinde (Eastbourne) (LD)]

I would like to think that all in this House believe in equality under the law, in sentencing matters and otherwise, but it is clear that two-tier justice has existed in our country, having been governed by two-tier Tories who thought they could get away with illegal No. 10 parties while the rest of us were told to stay at home; two-tier Tories such as the shadow Justice Secretary, who unlawfully approved a development for his donor; and two-tier Tories who have pummelled our prisons and crashed our courts, leaving victims to pay the price. Can the Minister tell us how he will reform sentencing in England and Wales to protect the victims and survivors so let down by the Conservatives?

[Sir Nicholas Dakin]

The hon. Member is perfectly right to underline the importance of equality before the law. He gives me the opportunity to give a plug to the independent review of sentencing being conducted by David Gauke with an independent panel, which will address the issues that he has raised.

[Imran Hussain (Bradford East) (Lab)]

Does my hon. Friend agree that if there is a two-tier justice system, it is not the one claimed by the Conservatives, but it is certainly one that was created by them—one where victims of crime are let down by delays, where working-class communities see justice delayed and denied, and where the reality remains that black and ethnic minority defendants are disproportionately sentenced? Does he agree that instead of playing political games with sentencing, we should focus on delivering real justice, ensuring that every decision made in our courts is based on evidence, not culture wars or headlines in right-wing rags?

[Sir Nicholas Dakin]

My hon. Friend is right to contrast the approach of the soundbites from the shadow Justice Secretary with the Justice Secretary’s approach of rolling up her sleeves and getting on with the job of sorting out the mess left in our prisons, Probation Service and courts.

[Sir Edward Leigh (Gainsborough) (Con)]

Just to be constructive for a moment and to try to get a bit of consensus, surely no one is suggesting that anybody in Parliament wants to restrict the power of judges and their traditional right to sentence people according to their own lights. All we are questioning is whether a quango like the Sentencing Council should try to stack the deck against certain groups. All we are saying is that judges should impose sentences irrespective of people’s race, colour or whatever.

[Sir Nicholas Dakin]

The Father of the House and my constituency neighbour brings a constructive note, and I agree with exactly what he says. We have an independent judiciary that we should let get on with the job.

[Emma Foody (Cramlington and Killingworth) (Lab/Co-op)]

As a former magistrate, I have been personally involved in sentencing decisions and have relied on and can attest to the importance of pre-sentencing reports giving as much information about an offender as possible before deciding an appropriate sentence. Used properly, they can cut reoffending rates. Does the Minister agree that pre-sentencing reports should therefore be available for all offenders and that access should not be determined by an offender’s ethnicity, culture or faith?

[Sir Nicholas Dakin]

My hon. Friend is exactly right that pre-sentence reports play an important role, and we ought to applaud the work that the Probation Service and others do in preparing those reports. She is exactly right to point to how effective they are in helping with sentencing.

[Sir Jeremy Wright (Kenilworth and Southam) (Con)]

The Minister is right to stress the independence of the Sentencing Council, but would he accept that he cannot criticise the shadow Secretary of State for having a view on these draft guidelines when the Secretary of State herself did exactly that? I also ask him to consider in this debate the real purpose of a pre-sentence report. It is there to give more information about an offender, but it also enables a judge to impose a non-custodial sentence if they believe that is the appropriate course. It is hard for a sentencer to do that, unless someone has been assessed as suitable for a community penalty. Whatever the rights and wrongs of this debate, is it not important that the Sentencing Council makes clear that what is important in deciding whether to ask for a pre-sentence report is whether that extra information is needed and not anything else, including protected characteristics?

[Sir Nicholas Dakin]

That is exactly what the Lord Chancellor is saying.

[Tony Vaughan (Folkestone and Hythe) (Lab)]

Does the Minister agree that there is a fatal flaw in the case of the shadow Justice Secretary: his party worked for months to develop the very guidelines about which they now complain? Does the Minister further agree that rather than desperately scoring an own goal for his party, the right hon. Member should get behind this Government’s reforms to clear up the mess left by the Conservatives?

[Sir Nicholas Dakin]

To be fair to the Conservatives, they did not work on the guidelines, but they were consulted on them, and they did respond to them in a positive way.

[Jess Brown-Fuller (Chichester) (LD)]

I note the comments by the chair of the Sentencing Council Lord Justice William Davis, who said that both Labour and Conservative Ministers, or their representatives, had known about the plans since 2022 and did not object. While I am disappointed that the Government are only acting reactively now, does the Minister not agree that the shadow Secretary of State has no shame and that it is hard to take his faux outrage seriously when this is just another audition for Tory leader?

[Sir Nicholas Dakin]

The hon. Lady has said what everybody else in this House and outside it is thinking.

[Steve Yemm (Mansfield) (Lab)]

Does the Minister agree that the Conservatives have some explaining to do, given that the Sentencing Council’s consultation on the guidelines that recommended differing approaches for those from an ethnic minority background was undertaken during the previous Government, that the previous Government was a statutory consultee and that it was welcomed by the Government at the time?

[Sir Nicholas Dakin]

My hon. Friend is exactly right. The previous Government were fully involved in the consultation, and not only were they fully involved, but they welcomed it.

[Sir Roger Gale (Herne Bay and Sandwich) (Con)]

Coming to this fresh, as one without a legal background, it seems to me that there are matters here of very great importance that ought to be properly debated by this House. Does the Minister agree that this is yet another classic example of where the much-vaunted separation of powers is likely to interfere with the process?

[Sir Nicholas Dakin]

This is the third consecutive week in which we have discussed this in the House. We discussed it in the Lord Chancellor’s statement, we discussed it at Justice questions last week, and we are discussing it again today.

[Chris Vince (Harlow) (Lab/Co-op)]

I thank the Minister for his response. It has already been mentioned that pre-sentencing reports are important for judges. However, does he agree that pre-sentencing reports should be available for all offenders, and that their availability should not be determined by an offender’s ethnicity, culture or faith? Further to what the hon. Member for Eastbourne (Josh Babarinde) said, we also had a two-tier probation system under the last Government.

[Sir Nicholas Dakin]

I absolutely agree with my hon. Friend’s point.

[Richard Tice (Boston and Skegness) (Reform)]

Does the Sentencing Council understand that, with these guidelines, it is totally out of touch with the mood of the British people, totally out of touch with the mood of the Government, and totally out of touch with the mood of the House? And therefore, why will it not agree to delay these guidelines until they have been properly debated in this House?

[Sir Nicholas Dakin]

To be fair, the chair of the Sentencing Council met the Lord Chancellor last week, and it was a constructive meeting. He is awaiting a letter from the Lord Chancellor, which he promises the Sentencing Council will consider and respond to before 1 April.

[Alistair Strathern (Hitchin) (Lab)]

As a former local authority lead for youth justice, I saw at first hand how important pre-sentencing reports can be in shaping effective and progressive outcomes in justice. However, it cannot be right that access to them is determined by factors such as race and religion. I applaud the Justice team for making such a strong and robust response to the Sentencing Council’s guidance so far. Can the Minister assure me that unlike the last Government, who were clearly asleep at the wheel during the consultation, we remain willing to take whatever action is needed to uphold this important principle?

[Sir Nicholas Dakin]

I agree with my hon. Friend that the last Government appear to have been asleep at the wheel, rediscovering their mojo only once they were in opposition.

[Esther McVey (Tatton) (Con)]

Last week, the Prime Minister announced that he is abolishing NHS England to make sure the NHS is brought back under democratic control. Will the Minister be lobbying the Prime Minister to abolish the Sentencing Council to make sure sentencing is brought back under democratic control?

[Sir Nicholas Dakin]

I thank the former common sense Minister for her question—

[Esther McVey]

You wouldn’t understand common sense.

[Sir Nicholas Dakin]

If the right hon. Lady stops gabbling and listens, I will attempt to answer her question.

I think the right hon. Lady is getting a little ahead of herself. There is a process in place, and there has been a constructive meeting with the Sentencing Council. A letter is being sent to the Sentencing Council, and the Sentencing Council will respond.

[Siân Berry (Brighton Pavilion) (Green)]

I do not believe the shadow Secretary of State believes that the law is currently applied equally and free of structural biases. But given the unfortunate politicisation of all this, does the Minister now back the chair of the Sentencing Council, who says that the state should not determine the sentence imposed on an individual offender and that sentencing guidelines of any kind—if they were to be dictated in any way by Ministers—would breach an important principle?

[Sir Nicholas Dakin]

Certain things are a matter of policy, and they are for the Government and for Parliament. We have had a constructive meeting with the Sentencing Council, a letter is going to the Sentencing Council, and the Sentencing Council will respond. We totally respect the independence of our judiciary.

[Sir Gavin Williamson (Stone, Great Wyrley and Penkridge) (Con)]

Just the other week, the Lord Chancellor made it clear that she does not agree with the direction in which the Sentencing Council is going, and I think we all hope that her meetings with the Sentencing Council will produce results. However, if they do not, will the Minister commit to working across parties? I think there is a real commitment on the Opposition Benches to work with him to bring forward emergency legislation, if that is required.

[Sir Nicholas Dakin]

I thank the right hon. Member for the constructive tone of his question. I refer him to the point about our not wanting to get ahead of ourselves. We need to allow the process to go forward, and to respect the Sentencing Council’s role in it; we will address things when we need to address them.

[Mr Joshua Reynolds (Maidenhead) (LD)]

We are in the bizarre position where the body that advises judges on how to judge may decide to go to court for a ruling on whether Ministers have the power to tell judges what to do. What preparation has the Minister’s Department made for that possibility?

[Sir Nicholas Dakin]

I am afraid that I am becoming a bit repetitive. There is a desire from Opposition Members to rush ahead, and I have great respect for that—[Interruption.] Well, you had 14 years, and what did you do in them? [Interruption.] Sorry, Mr Speaker, not you. Opposition Members are trying to rush ahead; we will take things steadily, at the right pace, with proper respect.

[Sir Desmond Swayne (New Forest West) (Con)]

On a point of great importance to the Lord Chancellor, she is reduced to asking the Sentencing Council to change its mind. The former Minister for common sense is right. There is a lesson here for all parliamentarians about the way we delegate powers to quangos that then come up with solutions that we clearly find repulsive.

[Sir Nicholas Dakin]

There was a constructive meeting. If the right hon. Member had been in it, I do not think he would have seen it as somebody “asking”. There was a constructive exchange of views, and there is a proper process in place, which I am confident will come up with the right answer.

[Nick Timothy (West Suffolk) (Con)]

It is obviously ridiculous that the Justice Secretary is on her knees before a quango, asking it to respect the principle of equality before the law, but this is not the only example. The Judicial College’s equal treatment handbook says:

“to treat some persons equally, we must treat them differently.”

Will the Minister condemn that logic and say, “No, we must not treat defendants differently because of their race or religion”?

[Sir Nicholas Dakin]

The Government do not believe that there should be differential treatment before the law. The Lord Chancellor has been very clear about that. The “Equal Treatment Bench Book”, to which the hon. Member alludes, is written by and for the judges. Ministers have no involvement whatsoever in its content.

[Mr Peter Bedford (Mid Leicestershire) (Con)]

Does the Minister agree with me and many of my hon. Friends that policy decisions by unelected non-departmental bodies such as the Sentencing Council are eroding public confidence in our democratic institutions? Will he commit to scrapping such bodies, so that policy is always made by Ministers, who are directly accountable to this House?

[Sir Nicholas Dakin]

Policy decisions should always be made by this House; the hon. Member is absolutely correct about that. The background to where we are today is that the Sentencing Council consulted the Government of the day, members of whom are now on the Opposition Benches. The members of that Government were asleep at the wheel. Now it is down to this Government, yet again, to pick up the pieces they left for us and sort out their mess.

[Lewis Cocking (Broxbourne) (Con)]

My constituents are confused about the Justice Secretary’s position. She says she believes that these sentencing guidelines are wrong in principle, and that they amount to differential treatment before the law, but she is in government; she has the power and the tools at her disposal to stop this and change it. Why has she not done so?

[Sir Nicholas Dakin]

I have tried to explain this, and I will explain it once more. The Justice Secretary, the Lord Chancellor, has been extremely clear that she believes in equality before the law, and she is not happy with the guidelines. That is why she wrote as soon as they were published, unlike Conservative Members, who had sight of them earlier in the consultation. They went further than ignoring them; they responded to them in a very positive way.

[Mr Speaker]

Order. I know you like to think that in order to keep talking a bit—[Interruption.] One of us is going to sit down; it is not going to be me, Minister. There are other things to do and points of order to follow.

[Jim Shannon (Strangford) (DUP)]

The Minister is an honourable man, and I have to ask a question on behalf of the victims, if he does not mind. He will understand that any reform of sentencing must have victims at its heart. For most victims, their concern is not the ethnicity of the perpetrator, but the severity of the crime and the lasting impact on their life. Many victims today will feel that the sentencing guidelines play politics with justice. How can victims be assured that justice will mean time served for crimes committed, and will not be based on ethnicity? Justice is blind, and so must sentencing be.

[Sir Nicholas Dakin]

The hon. Gentleman will not be surprised to learn that I agree with him. The victims Minister, my hon. Friend the Member for Pontypridd (Alex Davies-Jones), is sitting next to me; we take victims very seriously. That is why there is a victims’ representative on the sentencing review panel. We need to make sure that victims are at the centre of whatever we do. I have met too many victims already in this role, and every time I meet them, it is very difficult—a little difficult for me, but hugely difficult for them, because they live this.

[Linsey Farnsworth (Amber Valley) (Lab)]

It seems like every week we are back here, dealing with culture wars—

[Mr Speaker]

Order. Is that a reflection on me granting the urgent question? I am beginning to feel that it is aimed at me. We have this urgent question today because I thought it was appropriate, not because we have it every week. Right, let’s have somebody else.

[Bradley Thomas (Bromsgrove) (Con)]

Judging by the lack of action, it appears that the Justice Secretary is comfortable with changes that she has described as two-tier coming into effect in just two weeks. We have heard that she is unhappy; if she really is, can the Minister tell the House and the country what the Secretary of State is doing, other than holding cordial and cosy meetings, to prevent two-tier justice?

[Sir Nicholas Dakin]

The Lord Chancellor has made her position clear. She immediately met the Sentencing Council, and she is writing to it again to set out her concerns, and the Sentencing Council has committed to responding to them quickly.

[Mr Richard Holden (Basildon and Billericay) (Con)]

The Minister complains about having to explain the Government’s position, but why can he not just explain to us why the Secretary of State has not fixed this issue yet? It seems that there has been a meeting, but she has not even written a letter in the last three weeks explaining what she wants to happen. That is why I thank you very much indeed, Mr Speaker, for granting this urgent question again. The Minister has not actually fixed the problem that we are all talking about.

[Sir Nicholas Dakin]

The consultation was held under the previous Government, who not only expressed no concern, but welcomed what the Sentencing Council was doing. Immediately on seeing the guidelines as drafted, the Lord Chancellor acted to sort out the mess left by the Conservative party.

[Lincoln Jopp (Spelthorne) (Con)]

The Minister says that the situation is completely clear, so I feel like a bit of an idiot for asking for more clarification, but I will anyway. Pre-sentencing reports are allowed to take in further background on the lives of offenders from an

“ethnic minority, cultural minority, and/or faith minority community”.

What is the definition of a cultural minority, and are our veterans considered a cultural minority?

[Sir Nicholas Dakin]

The hon. Member reads out a phrase that was welcomed by the previous Government, but that the Lord Chancellor is objecting to and talking to the Sentencing Council about.

[Mr Andrew Snowden (Fylde) (Con)]

On Wednesday, I challenged the Prime Minister directly on two-tier justice, and gave him the opportunity to confirm that he would back the shadow Justice Secretary’s Bill to stop this in its tracks. In his attempts to scramble out of giving that commitment, he said something which has been repeated today: that the previous Government were consulted on and welcomed the guidance. However, the Sentencing Council has already put in writing that the wording is different and so would lead to a materially different outcome. The Government failed to take the opportunity that the shadow Justice Secretary presented them with to block this change. Was the Prime Minister right in what he said, or is the Sentencing Council right? They cannot both be.

[Sir Nicholas Dakin]

The letter the previous Government wrote to the Sentencing Council during the consultation is clear. The previous Government were not just consulted; they welcomed the guidance. The initial version of the guidance included reference to specific cohorts of offenders, including ethnic minorities.

[Robert Jenrick]

On a point of order, Mr Speaker. In his response to the urgent question, the Minister has repeatedly told the House that the previous Government approved the guidelines. In particular, he besmirched the name of the former sentencing Minister, my hon. Friend the Member for Orpington (Gareth Bacon). What the Minister said to the House today was wrong. On page 4, paragraph 4, of the Sentencing Council’s letter of 10 March to the Justice Secretary, it made it perfectly clear that the guidelines published under this Government were materially different from those considered by the prior Government. In fact, the Minister’s official was present at the meeting of the Sentencing Council at which this version of the guidelines was signed off. Will he take the opportunity to correct the record? I am afraid that he has misled the House not once, not twice, but on numerous occasions today, and that is quite wrong.

[Mr Speaker]

Order. Nobody misleads the House; the right hon. Gentleman means “inadvertently” misled the House.

[Robert Jenrick]

I do hope it was inadvertent, Mr Speaker.

[Sir Nicholas Dakin]

Further to that point of order, Mr Speaker. I do not believe that I inadvertently misled the House.