Sentencing Guidelines (Pre-sentence Reports) Bill

Committee stage
Monday 19th May 2025 Grand Committee

Committee

Relevant document: 8th Report from the Constitution Committee

15:45

Clause 1: Sentencing guidelines about pre-sentence reports

[The Deputy Chairman of Committees (Baroness Barker) (LD)]

My Lords, I inform the Committee that, if Amendment 1 is agreed to, I cannot call Amendment 4 because of pre-emption.

Amendment 1

Moved by

[Baroness Chakrabarti]

1: Clause 1, page 1, leave out lines 5 to 7 and insert—
“(4A) But sentencing guidelines may not require or prohibit the provision of a pre-sentence report by reference to an offender’s protected characteristics alone.”Member’s explanatory statement
This and other amendments in the name of Baroness Chakrabarti replace the reference in clause 1 to “different personal characteristics of an offender” with the tighter definition of “protected characteristics” in the Equality Act. It further restores some discretion to the Sentencing Council as long as guidelines do not require or prohibit pre-sentence reports on the basis of such characteristics alone.

[Baroness Chakrabarti (Lab)]

I apologise to the Committee that I was not able to speak at Second Reading because I was unable to stay for the whole debate, but I attended a significant portion of it and I have read Hansard for the rest. I apologise as well that, subject to how long we are engaged in this Committee, I shall have to shuttle between the Moses Room and the Chamber for Committee on the Employment Rights Bill, where I also have amendments—no discourtesy is intended. Who knows, the Chair might give us a nod with her advice as to how business is going in the Chamber. We may have Divisions on the earlier business in the Chamber.

I take this opportunity to welcome my noble friend the Minister to his first Committee stage of a Bill. I am sad that this is the first Bill that he has had to grapple with. I should have liked a more auspicious Bill for him to begin with—but who knows? With the Gauke review to come, I still have high hopes for cross-party or non-party sensible approaches to sentencing, of a kind that I think we heard a little flavour of perhaps at Questions just now.

I have made no secret of the fact that I am not a fan of this Bill, either of the politics or the constitutionality of it, and I also have practical concerns about it. It is a real shame that this Bill came out of a soundbite war, essentially, about two-tier justice, and so on, which was really an extension of the appalling sights that we witnessed last summer. It is a shame that the Government felt it necessary to respond to less than thoughtful voices on all that, and it is a shame that they were unable to reach a sensible diplomatic resolution with the Sentencing Council.

Also, as a proud member of the governing party, I believe in a certain amount of affirmative action. Again, in this regard, I pay tribute to my noble friend the Minister. One reason why he is such an asset to the Government is that the Timpson brand, not just on the high street but in terms of penal reform, is such a well-respected brand, partly for its extraordinarily progressive experiment in a version of affirmative action, offering employment to people who otherwise would not get a look-in, for whom employment makes all the difference—that is, people who have been in custody. I pay all tribute to my noble friend and to his family.

The Labour Party has been a pioneer in affirmative action, with all-women shortlists and the idea that sometimes, to deal with entrenched discrimination and injustice, one has to tilt the dial and try to take some affirmative measures. In a nutshell, that is the spirit of the Lammy report. That is where I am coming from, without making the Second Reading speech that I did not make.

We are where we are, as many noble Lords said at Second Reading. So, in the spirit of good faith and attempting to improve the Bill, I have in my name Amendments 1, 5, 11 and 13 in this group, and I support all the amendments proposed by the noble Lord, Lord Marks of Henley-on-Thames, and his colleagues, which I think are in the same spirit, attempting to minimise in particular any constitutional damage. Let us not throw the baby out with the bath water if we are concerned about perceptions of so-called two-tier justice; let us just get this right and make sure, of course, that people are being treated as individuals and not as ciphers for any particular group, but that their circumstances are also appropriately taken into account, which really is the whole point of a pre-sentence report in the first place.

First, in my Amendment 1, I take issue with the broad and quite vague concept of “personal characteristics” offered in the Bill and suggest that, if the Government are so concerned about this sloganistic perception of two-tiered justice, they should probably go to the tighter definitions in the Equality Act of protected characteristics on the one hand, but also not really clip the wings of the Sentencing Council too much: make sure the Sentencing Council does not clip the wings of individual sentencers on the one hand, and let individual sentencers make decisions about when they should and should not require a pre-sentence report. But this concept of personal characteristics is very vague.

I am grateful to my noble friend the Minister for his letter of last week, but I think that relying on Strasbourg case law about Article 14 is really not the best approach in the context of domestic law. Not that I am not a great champion of the convention, you understand; there are criteria that are useful at that kind of international law level. But at the domestic level, we should be a bit more granular and precise. In the context of looking at convicted people as individual human beings and at sentencing as an exercise in looking at those individual human beings and at what will help with rehabilitation and preventing reoffending, this very broad, vague concept that is been adopted in the Bill is a mistake and is in grave danger of shutting out the sorts of considerations that actually would be very useful when deciding in the context of rationing.

It is a shame we have to ration pre-sentence reports. Let us be clear—let me put myself on the record. I would like to have a pre-sentence report, ideally, whenever someone is going to be sentenced to a community penalty or to custody, and especially for the first time. If I am going to be told that that is totally unrealistic, so be it, but I certainly do not want their individual circumstances to be shut out of that assessment, and the Bill as currently drafted risks that. That was put incredibly well by a number of noble Lords at Second Reading and I refer colleagues to Hansard on that.

So that is why I suggest in my amendment to Clause 1 that it is one thing to say that a protected characteristic under the Equality Act should never be the reason why you definitely get a PSR or you do not get one, because we are concerned about two-tier justice and all of that—so you should not just get one because you are a woman or because you are black. But if that is part of the matrix of your general experience, knowing what we know about oversentencing and disproportionate outcomes, on the one hand, we need the tighter definition that comes with the Equality Act rather than in the case law from Article 14, and on the other hand, we should not clip the wings of the Sentencing Council too tightly.

Why should we not do that? From a constitutional point of view, the Sentencing Council plays a very important role in bridging the constitutional gap between the Executive and the legislature on the one hand, and sentences and judges on the other hand. What do I mean by that? If Parliament, with or without the initiation of the Government—it usually is on the initiation of the Government, let us be clear—wants to tell judges what to do, Parliament has vehicles for so doing. The primary vehicle is primary legislation and there is also secondary legislation. But the point of sentencing guidelines is not to do that.

The point of the guidelines is so that judges passing sentences of any level rightly and necessarily have discretion, which they must exercise in the interests of individual justice. Sentencing guidelines are about helping them structure that discretion so that we do not have a total postcode lottery and, in a sense, so that brother and sister sentencers can share their thinking about the sorts of factors they might like to have in mind before they sentence or, in this case, before they commission a pre-sentence report. That is what my first amendment is about: do not clip the wings of the Sentencing Council too tightly. Do not use vague terms that come from the jurisprudence of Article 14 rather than the tighter definitions in our established domestic legislation.

Moving on to other amendments in my name in this group, I draw the Committee’s attention to Amendment 5. This flips the dial and looks positively at the sorts of factors we would perhaps want. We have talked about what we do not want the Sentencing Council to be invoking in its guidelines because we are afraid of any suggestion that people are getting special treatment. But what about the sorts of things that ought to encourage the use of pre-sentence reports? I repeat that I would like everyone to get one but, if they have to be rationed, what sorts of factors would we actively want a judge to take into account and therefore the Sentencing Council to take into account and suggest to judges?

These factors are found in my Amendment 5, which includes

“where the sentencer believes that their own life experience is particularly far removed from that of the offender”.

We do not like to talk about this, but that was partly what the Lammy review was about. This is not an affront to people of a particular type; it is just saying that it is very hard. It is one thing to sit in judgment when you are trying to come up with positive, creative community and/or custodial sentences that are going to make things better and not worse. Maybe you should try to understand an offender that you do not understand—so, where the sentencer believes that their own life experience is particularly far removed from that of the offender.

The amendment also includes

“where the sentencer believes that an offender is a member of social group that appears to be over-represented in the prison population”.

I refer once more to the excellent Lammy report, which is how we got here in the first place. I am embarrassed, but also proud, to say that it was commissioned by a Conservative Prime Minister and written by the now Labour Foreign Secretary. It seems to be possible to have a different kind of conversation about sentencing and the criminal justice system, which I hope will continue later this week with the advent of the Gauke review.

The third area for consideration proposed by Amendment 5 is

“where the sentencer believes that an offender or their dependants may be particularly badly”

affected

“by the imposition of a community or custodial sentence”.

A famous Strasbourg judgment, Thlimmenos v Greece, makes a point about equal treatment; it is a very important Strasbourg decision. Non-discrimination is not just about treating people in the same way; it is about understanding the different needs and experiences of different people. If I require everyone coming to my restaurant or hotel to go up a steep staircase, I am shutting out anyone in a wheelchair. Thlimmenos v Greece is the landmark Strasbourg decision that said we also need to think about treating people with different experiences and needs differently in order to enforce the very important human rights principle of equal treatment.

16:00

As we know, a single mother facing custody for the first time will not just have a very tough time in custody; her children will have a very tough time, too. I have seen, from some of the comments emerging under embargo and otherwise from the Gauke review, that the Government, and certainly David Gauke, are concerned about this, so let us not throw a spanner in the works of the positive Gauke review before it has even been born, if I may put it like that.

The final area for consideration in my Amendment 5 is

“where the sentencer is considering an offender for their first community or custodial sentence”.

Clearly, it is not in the natural scope of the Bill for me to attempt to bind the Government’s or Parliament’s hands to legislate to reverse austerity—more’s the pity—or to have PSRs in every case, but I certainly think that sentencing guidelines dealing with PSRs should be allowed to encourage, and should generally encourage, sentencers to think very seriously about trying to get a PSR before someone is given a community penalty or custodial sentence for the first time.

How can you tailor a community penalty to suit an offender, and have a chance of it working, without a PSR or some kind of expert advice about the disposals and programmes available and about what would suit the offender, including their needs and problems, and, equally, have custody? I really do not think we should be sending people to custody, especially for the first time, without a PSR. I am sorry that I have taken a bit of time, but those are my remarks on the first group.

[Baroness Hamwee (LD)]

My Lords, I tabled the next amendment in this group, Amendment 3, but, having had a conversation with the noble and learned Lord, Lord Burnett of Maldon, I hope that we might hear from him, as I think he would be very helpful to the Committee at this point. I say that in case anyone looks at me and wonders why I am not speaking at this point.

[Lord Burnett of Maldon (CB)]

My Lords, I am extremely grateful to the noble Baroness, Lady Hamwee, for that suggestion. I hope not to detain the Committee for long. I declare some interests at the outset. When I was Lord Chief Justice, I was president of the Sentencing Council and thus responsible for appointing all its judicial members, with the concurrence of the Lord Chancellor. The Lord Chancellor appointed all the lay members with my concurrence. Like the noble Baroness, Lady Chakrabarti, I was present at the Second Reading debate but did not speak. The noble and learned Lord, Lord Thomas of Cwmgiedd, spoke, and we considered that, for the sake of all those there, one former Lord Chief Justice was probably enough.

In one way or another, all the amendments in this group seek to confine or define what is meant by the term “personal characteristics” in the Bill. As all noble Lords will have noted, the term is not defined in the Bill and, in accord with various noble Lords who have tabled amendments, my strong view is that it needs a definition. Although there is no definition in the Bill, the Explanatory Notes try to provide some further explanation. They use the term “demographic cohort” as a synonym for personal characteristics, and they contrast “personal characteristics” with “personal circumstances”, but neither of those terms is in the Bill or defined.

In the Second Reading debate, the Minister said:

“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”.—[Official Report, 7/5/25; col. 1625.]


The amendment in the name of the noble Baroness, Lady Hamwee, explores what might be meant by “cultural background”, which is, of course, a term that came from the Sentencing Council’s draft guideline. Like others, I find it an extremely elastic and elusive concept. However, the inclusion of pregnancy status as a personal characteristic illustrates the problem caused by the lack of a statutory definition.

A few minutes later, in the same debate, the Minister said:

“A particular concern was raised by the noble Baroness, Lady Jones, about how the Bill may impact on women—in particular, pregnant women … 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”.—[Official Report, 7/5/25; cols. 1626-27.]


With the greatest of respect to the Government, this exposes a degree of incoherence. The Government’s view is that pregnancy is a personal characteristic. It follows that, if this Bill passes in its current form, it would be unlawful for the Sentencing Council to include it in a guideline on pre-sentence reports; and that it would thus be unlawful for the Sentencing Council to give guidance that reflects judgments of the Court of Appeal. Is that really what the Government are trying to achieve? The right reverend Prelate the Bishop of Gloucester, who sits directly opposite me, has an amendment to deal with that extraordinary outcome.

Although the Government have shied away from defining “personal characteristic” in the Bill, they have not had such inhibition in correspondence both to the Constitution Committee, on which I serve, and to all Peers. In a letter to all Peers, in a long section headed “Definition of ‘personal circumstances’”, the Minister explains that the European Court of Human Rights uses the term when considering, for the purposes of Article 14 discrimination, whether a person enjoys another status; the noble Baroness, Lady Chakrabarti, has already referred in passing to some of the jurisprudence on that matter. However, if I may say so—in complete agreement with the Government—that term in the Strasbourg case law has no crisp definition, and it does not do so for very good reasons.

The Minister refers in his letter to jurisprudence in the House of Lords, where, in the context of Article 14, my noble and learned friend Lord Neuberger of Abbotsbury—I am glad to see that he is in his place—and my noble and learned friend Lady Hale provided assistance with the meaning of “personal characteristics”. In his letter, the Minister approbates the interpretation of my noble friend Lord Neuberger, who said that

“the concept of ‘personal characteristic’ … generally requires one to concentrate on what somebody is, rather than what he is doing or what is being done to him”.

If it is the Government’s view that those wise words of the noble and learned Lord, Lord Neuberger, provide the kernel of a definition for the term, “personal characteristics”, why on earth is it not in the Bill? It matters because the correspondence goes on to suggest that the observations of both the noble Lord, Lord Neuberger, the noble and learned Baroness, Lady Hale, and also, historically, Lord Steyn, would be a legitimate aid to construction to assist the Sentencing Council. I emphasise that it would not be a legitimate aid to construction should the matter ever find its way to a court—that is to say, the noble Lord’s letter, rather than the observations of the noble and learned Lord, Lord Neuberger.

That comment, if I may respectfully say so, perhaps illustrates a faint misunderstanding in the Government. It is not only the Sentencing Council that needs to understand with clarity what the term “personal circumstances” means. All those who respond to consultation put out by the Sentencing Council must also be able to understand what it means. In these fevered times, it is not impossible that there might be a challenge to what the Sentencing Council has put in a draft guideline, and which might emerge in a final guideline. So, a court will have to—at least perhaps—interpret this phrase.

It is with that in mind that I support all or any amendments that seek to bring some clarity to what “personal circumstances” means in this context. Without a definition, I fear that the Government are storing up trouble for the future.

[Baroness Hamwee (LD)]

My Lords, I have Amendments 3 and 12 in this group. Like other noble Lords, I am sure, I have found myself very torn. I basically oppose the Bill, but we are having to deal with it today at the level of detail.

I am sorry not to be able to go absolutely all the way with the noble Baroness, Lady Chakrabarti, but I am worried about the term “protected characteristics”. Perhaps this is taking too short-term a view, being too aware of the baggage that the term carries at the moment, but I have a nervous reaction against using a term which is in particular legislation for a particular purpose.

The noble and learned Lord, Lord Burnett, mentioned the report of the Constitution Committee, of which I am also a member, which recommended that

“the Bill should be amended to ensure appropriate legislative certainty and clarity”,

going on to say there should be

“a full definition of the ‘personal characteristics’ on the face of the Bill or … an alternative term which is clearly legally defined”,

and also commented on retrospectivity. If the Bill is intended to apply to guidelines which are already operational, this should be explicit in the Bill.

Over the weekend, I thought about another approach to this. It was too late to table it as an amendment, but as we will come back to this clause—essentially, the whole of the Bill—on Report, I thought I would float it now. I found myself increasingly intrigued by the phrase

“framed by reference to different personal characteristics”.

Does that mean that the guidelines can include some characteristics if they are not the frame for them? Does it mean framed alone or only by reference to personal characteristics? I want to get rid of the Bill entirely, as I have said, but anything that will ameliorate the effects is worth looking at.

16:15

The Bill is about guidelines and not directly about the pre-sentence report, so I will welcome the Minister’s confirmation that the pre-sentence report and sentence can take account of, or possibly even be framed by, personal characteristics. I am not alone in thinking that the terms “personal characteristics” and “personal circumstances” are difficult, when one looks at them together. We have had the ministerial letter, to which the noble and learned Lord referred, distinguishing what is intrinsic from what is external and done to you. Pregnancy and maternity are regarded as both “characteristics” and “circumstances” by some, and indeed at the meeting last week, for which I thank the Minister, we heard from the MoJ that there are some factors—can I call them that?—which can be both characteristics and circumstances. It is a cheap laugh to say that pregnancy is a circumstance, but certainly, as regards maternity, a lot of people would say that it can be a circumstance, but it can be a characteristic. There is a lot of discussion about how maternity affects one as a person.

What about addiction and neurodiversity? Is there a distinction between neurodiversity caused by a trauma, at birth or later, and genetic neurodiversity? I knew a gentleman who sustained a terrible brain injury when some scaffolding fell on him. It certainly changed his character, to the extent that he wanted to be so generous and helpful to everyone that he did not see that it was a problem if he went on an international flight with a hacksaw in his bag so that he could do some DIY work for his son, whom he was visiting. I am not alone in being concerned about the confusion around this.

On the subject of different personal characteristics, would it be okay for the provision to be framed by reference to one personal characteristic? Like the noble Baroness, I am concerned about the whole person—the individual—hence my amendment.

“Cultural background” is a term I have used often myself, without I suspect being very clear about what I meant. Is it—as it is to me—a sort of mixture of religion, ethnicity and a whole lot of other life experiences and background? Is it geography? I do not want to tread on the toes of other noble Lords. I am sure I am going to agree with what those who have tabled other amendments in this first group will say. I will mention only the right reverend Prelate, who knows so much about this issue with her experience of women’s centres and so on and has talked very powerfully whenever I have heard her about the appropriate criminal justice response, and prevention, in the case of women in the criminal justice system.

I remember on this subject that we talked about the impact on children caught up in the criminal justice system because a mother is impacted by it. The Joint Committee on Human Rights did some work that alluded to that, and we heard some extremely moving evidence from the grandmother of children whose mother was detained. I hope that, working together, we can find our way through this—otherwise, we are just going to impose by legislation what is, frankly, a really difficult mess.

[Lord Beith (LD)]

My Amendment 14 in this group, like all the others, seeks to probe and challenge the uncertainty surrounding the definition on which the whole Bill depends. I welcome the amendments of the noble Baroness, Lady Chakrabarti, in that respect. I am particularly attracted by Amendment 5, which goes to the fundamentals of the problem. I hope that will get discussed in the course of our proceedings.

I am a member of the Constitution Committee, like several noble Lords present today, and I share the committee’s concerns about the legislative uncertainty and unhelpful precedent set by the inclusion and non-definition of personal characteristics. The committee said that this clause was insufficiently clear and introduced legislative uncertainty. The list of personal characteristics is, as the Government indicate in their Explanatory Note, non-exhaustive, which leaves a legislative hole. The Sentencing Council is placed under a prohibition: it must not frame guidelines by reference to different personal characteristics. But because the list is non-exhaustive, the council has no way of knowing what other personal characteristics fall within the prohibition.

It is a pretty basic principle of the rule of law that, in order that people should obey the law, they should be able to find out what the law is—but there is no way to find out what are acceptable other personal characteristics, and correspondence with Select Committees is in no way definitive in that respect. You create a body, in the form of the Sentencing Council, that is placed under a prohibition and cannot know the full extent of that prohibition. It is pretty weird—and, I think, very bad—legislative practice.

In his letter to the committee, the Minister indicates a number of things that, in his view, are not personal characteristics, including being a sole or primary carer or a victim of domestic violence. Where is the authority in the Bill to exclude those characteristics but not others, such as autism, neurodiversity or having a background of being brought up in local authority care? There is a whole number of things that might be considered personal characteristics or might not. What is the council intended to do about that?

My Amendment 14 addresses an even more confusing aspect of the personal characteristics problem. Several cases taken to appeal have set out where circumstances or characteristics should have been taken into account in deciding whether to seek a pre-sentence report: pregnancy in Thompson, 2024; modern slavery in Kurmekaj, 2024; and young offenders in Meanley, 2022—I think. A sentencing judge is expected to take account of those cases when deciding whether to seek a pre-sentence report. Of course, as the Minister will point out, the Bill does not directly impact on the court, or on the judge who is passing sentence. In any formal sense it does not change the criteria that the judge will consider while sentencing. But that is a very formal view of that matter—it is difficult to escape the conclusion that this discussion and the passing of this legislation might not have some influence on how judges view their freedom to seek pre-sentencing reports.

What can the Sentencing Council do about this? It appears to me that the effect of the Bill is that the Sentencing Council would be in trouble if it drew attention to the cases to which I have referred and sought to make judges aware that they are relevant to those particular circumstances—autism, a background of local authority care, and all sorts of other circumstances, such as being brought up on a particularly rough estate where there is known to be gangland activity and much likelihood of falling under the influence of violence if they had not carried out the offence. There are all sorts of circumstances like that which might be treated as personal characteristics, but to refer to existing cases that define circumstances in which pre-sentence reports should be used appears to be something that the Sentencing Council is precluded from doing. That does not make any sense to me at all, which is why I have drafted the amendment in that form.

I believe that, as the noble Baroness, Lady Chakrabarti, said, damage has been done to the authority of the Sentencing Council, particularly if we do not amend the Bill to make it legally coherent. The Sentencing Council sought to address a recognised and widely admitted problem about the disproportionate levels of custody sentences imposed on some sections of the community from particular backgrounds. In doing so, it unintentionally created what turned out to be a political problem, and the consequence of that is a disproportionate response from the Government and legislation, which, frankly, does not make sense and will result in legal confusion.

We ought to remember that the sentencing legislation already in existence, the Sentencing Act 2020, makes pre-sentence reports something courts should seek unless they deem it unnecessary to do so. Here we are, creating an aura of doubt around what judges should do when those very circumstances arise, which may be contributing to the disproportionate presence in our jails of people from certain backgrounds. That is careless and shows a lack of awareness of the unintended effects legislation can have. Therefore, we should amend the Bill, make it clearer and try to avoid some of those consequences.

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

My Lords, before I come to the substance of the debate, may I make one more plea to the Government? I agree with the noble Baroness, Lady Chakrabarti, and others in their trenchant criticisms of the Bill. I conclude—and I invite the Government now, even at this late stage, to conclude—that the Bill ought not to proceed before the publication of David Gauke’s Independent Sentencing Review, expected as early as this week. It could and should be withdrawn, or at least paused, to await that report and to allow time for reflection, both on the report and on the Bill in the light of it.

The Government’s own website, in describing the terms of reference for the Gauke review, says:

“The review will provide long term solutions for our justice system by”,


and then the sixth bullet point says,

“considering whether the sentencing framework should be amended to take into account the specific needs or vulnerabilities of specific cohorts, such as young adult offenders, older offenders, and women”,

which is precisely what the in-position guideline, approved by the Sentencing Council and now largely to be prohibited by the Bill, concluded should happen.

The Bill contains a number of difficulties which are addressed in a number of the amendments proposed by noble Lords from around the Committee, all of which are well within the terms of reference of the Gauke review. The first is highlighted by the noble Baroness, Lady Chakrabarti, and is presented by the shortage of resources, about which we all know, which has resulted in a failure to meet the clear and uncontroversial need for judges to have the benefit of full and well-prepared pre-sentence reports for all defendants—certainly for all defendants at risk of custodial sentences. Then there is the central difficulty of the Bill’s ruling out prioritising pre-sentence reports for particular cohorts, such as black defendants, in the face of very strong evidence—cited by the noble Baroness, Lady Chakrabarti—such as that produced by the Lammy review, that black defendants are more likely to be sent to prison than their white counterparts, and more likely to be sentenced to longer terms.

16:30

Then there is the lack of understanding—about which everyone has spoken in our debate on this group—in the Bill of the causes of that inequality of outcome, as well as the total lack of clarity on what personal characteristics are. Last week, in his all-Peers letter—this was cited and quoted by the noble and learned Lord, Lord Burnett of Maldon—the Minister, the noble Lord, Lord Timpson, drew a distinction between what a person is and what he has become by reason of what I might call life circumstances. The noble and learned Lord, Lord Burnett of Maldon, quoted from the letter and cited the speech made by the noble and learned Lord, Lord Neuberger, in RJM v Secretary of State for Work and Pensions, where he said that

“the concept of ‘personal characteristic’ … generally requires one to concentrate on what somebody is, rather than what he is doing or what is being done to him”.

However, although the distinction from the noble and learned Lord, Lord Neuberger, was undoubtedly accurate and helpful in context, circumscribed as it was by “generally requires”, it is impossible to separate those two ideas of what someone is and what someone has become by reason of life experience in the context of deciding whether they need pre-sentence reports. A person may be of a particular race, and may suffer discrimination and abuse as a result. What is causing that person’s vulnerability? Is it their race or the result of the abuse and discrimination? All the amendments in this first group highlight this artificiality and, frankly, its unhelpful- ness in the context of a statute, as opposed to the speech from the noble and learned Lord, Lord Neuberger, in the House of Lords on the unhelpfulness of this distinction. Here I agree with the noble and learned Lord, Lord Burnett of Maldon, and my noble friends Lady Hamwee and Lord Beith.

I turn to my Amendments 4 and 6. I accept that they would not necessarily be the only perfect solution, but they are an attempt to give some coherence to the prohibition in the Bill by permitting the Sentencing Council to prioritise the availability of pre-sentence reports for cohorts of offenders where it has “good cause” for its stance. This is defined in my Amendment 6 as

“reason to believe that leaving such personal characteristics out of an account would be likely to lead to an inequality of outcomes in sentencing”.

The Sentencing Council would be entitled to take established inequality of outcomes into account—I know that the Minister accepts that that inequality is a fact of life—for those particular groups that suffer from it, for good cause, in accordance with the evidence that the Sentencing Council considers.

This was all canvassed extensively at Second Reading. The prohibition proposed in the Bill would prevent the Sentencing Council taking that position, even where there was strong evidence that, first, such a cohort is more likely to be harshly treated than others in practice; and, secondly, that judges would be greatly assisted by pre-sentencing reports in sentencing members of such cohorts and in avoiding discrimination. Although it may be that the obvious case is that of race, the possibilities encompass—as the Government acknowledge and, indeed, aver—all the groups covered by the various amendments proposed by noble Lords.

In particular, inequality of outcomes may arise in a stark way for pregnant women and mothers—in their case, not because of the likelihood of longer sentences but because there is substantial evidence that pregnant women and mothers of young children suffer disproportionately when prison sentences are imposed. Amendments 14 and 16 in the names of my noble friend Lord Beith and the right reverend Prelate the Bishop of Gloucester raise these issues. The evidence extends not just to the women concerned, whose suffering as a result of a prison sentence is compounded by the mental anguish of separation; it extends also to the innocent children concerned, who suffer as a result of the imprisonment of their mothers. These are clear cases of inequality of outcome arising from the fact of imprisonment and its effect, rather than from race or deliberate discrimination.

Bluntly, critics of the Bill, and of the rush with which it has been introduced, along with its uncertainty—all criticised by the Constitution Committee—do not accept that sufficient thought has been given to the evidence, to the construction of the Bill or to its implications and effects. The amendments in this group are all directed at mitigating the faults of the Bill, but the best outcome, I suggest, would be for the Government to await the Gauke review, withdraw the Bill now and return with simple, sensible and fully considered legislation in due course. It may not be that simple—but sensible, certainly, and considered.

Before closing, I will add three points. First, there is general admiration in the House and, I suggest, across the criminal justice community, for the work of the Sentencing Council. I pay tribute to the noble and learned Lord, Lord Burnett, for his great contribution to the council’s work. The Sentencing Council very impressively fulfils its role in advising judges on sentencing, promoting sentencing consistency, which is fundamental to fairness, and developing sound, evidence-based principles for well-informed and effective sentencing for the future. This unfortunate row—for row it has been—culminating in the Bill, has done the Sentencing Council and, I suggest, the community, a large disservice. I hope the Government will make clear their commitment to the Sentencing Council and its work through their response to these amendments.

Secondly, there is recognition across the House and the criminal justice system generally that pre-sentence reports are a vital tool in achieving fairer and more effective sentencing by our criminal courts. We need to return to the position that such reports are always made available to judges, at least whenever a sentencing decision involves a genuine choice between a custodial and a community sentence. Furthermore, the quality of such reports needs to be improved so that they are thorough and well researched, and the cadre of highly qualified and committed probation officers preparing them are permitted the time and resource they need to ensure that they can produce thorough reports that will be as helpful as they can be to sentencing courts.

There is real public interest in getting this right, and it is a financial interest as well as a societal one. First, custodial sentences are expensive: far more expensive than community sentences. Secondly, there is a great deal of evidence that community sentences are more effective than custodial sentences in cutting reoffending. So, if it is right—and I think it is—that good pre-sentence reports lead to more community sentences and to less custody, a central subject of the Gauke review, that is likely to lead to significant savings to the public purse and to a healthier society, with an overall reduction in crime.

[The Lord Bishop of Gloucester]

My Lords, I will not repeat the arguments I made at Second Reading. However, as other noble Lords have said, I still do not believe that we need this Bill—and even less so, as the noble Lord, Lord Marks, said, given that the independent sentencing review will be published imminently. That should be the means for us to deal with the underlying principles raised today, and I do not know why this is not being paused and put on hold. I am also deeply concerned that the Bill may pass in a matter of days, while we go on waiting for decisive action flowing from the Lammy report, which stands at eight years and counting.

On the specific amendment in my name, Amendment 16, I will endeavour not to repeat all the important points that other noble Lords have made. I am simply seeking to minimise the harm to the unborn child and the wider family, and I hope that the sentencing review will give the opportunity to look at all this afresh.

I am grateful to organisations that have been advocating for PSRs for pregnant women, including Level Up and Birth Companions, and academics including Dr Shona Minson. I am grateful to the noble Lord, Lord Dholakia, and others, for supporting my amendment.

The Bill provides that sentencing guidelines about pre-sentence reports may not include provision framed by reference to an offender’s personal characteristics. It therefore removes any direction in any Sentencing Council guidelines for sentencers to obtain a PSR before sentencing a pregnant woman or a mother of a child. This means that an existing protection included in the current mitigating factor for pregnancy and the post-natal period, published in April last year, which directs sentencers to obtain a PSR before sentencing—and indeed adjourns sentencing until one is available—will now become unlawful.

In the absence of clear directions for courts to obtain a PSR for pregnant women and mothers who face a potential prison term, and whose children will be impacted by their incarceration, there is no guarantee that magistrates and judges will order PSRs for these women. The Government have put in jeopardy the now widely acknowledged need to urgently reconsider the incarceration of pregnant women and those who are primary carers of young children.

I do not want to rehearse the many reasons why incarcerating pregnant women and primary carers is dangerous, but I will give just a few key facts, which we have heard many times before. Pregnant women in prison are seven times more likely to suffer a stillbirth, twice as likely to give birth prematurely, twice as likely to give birth to a baby that needs specialist neonatal care and five times more likely to miss vital midwifery appointments due to staffing issues. Then, there are all those children deeply affected by the incarceration of their mothers and the removal of their right to family life when their mother is taken from them. Some 19 out of 20 children are forced to leave their homes when a mother goes to prison.

In 2019, the Joint Committee on Human Rights inquiry, The Right to Family Life: Children Whose Mothers Are in Prison, recommended that judges must not sentence mothers or primary carers without a pre-sentence report. It is critical that courts are directed to obtain a PSR before sentencing a pregnant woman or the mother of a dependent child.

Of all female defendants prosecuted at court, 14% were prosecuted for indictable offences. That means that the vast majority of women in court who are accused of low-level non-violent crimes are sentenced by magistrates: hard-working volunteers who nevertheless undergo less than four days of training. Women in these courts are often represented by underpaid, overworked criminal defence practitioners. Without formal guidance on PSRs, the fate of pregnant women and mothers is in the hands of people who are very dedicated but may sentence them to prison without recognising the damage this causes.

I began by saying that I did not wish to repeat arguments made at Second Reading. I must say, however, that in tabling this amendment, I hope it to be, essentially, a stop-gap measure on a misguided Bill which should not have been brought in the first place and leaves me deeply perturbed.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I declare my interest as a member of the APPG for Gypsies, Travellers and Roma, and I apologise for not being present at Second Reading. I did, however, watch this at home on the Parliament channel.

I will speak to Amendment 11 but support the whole of this group of amendments. I am, however, in two minds about the Bill. When I listened to the noble Lord, Lord Timpson, during his opening address at Second Reading, I felt that he was right. Everyone should be treated equally; there should be no preferential treatment for some. However, I know from my past experience that equality of treatment does not come automatically to everyone. Sadly, the evidence supports this.

I state at the outset that I have no legal experience. I am not a lawyer or an expert on technical legalistic language, and I am somewhat overwhelmed by the experience around me, but I will swallow hard and continue. We have heard some pertinent contributions this afternoon about whether the words “personal characteristics” should replace “protected characteristics”, as defined in the Equality Act 2010. I hope to make the case for “protected” over “personal”.

16:45

Over the last 30 years, I have supported the Gypsy, Roma and Traveller community in a variety of ways, including chairing a working group looking into their access to services—or, as it turned out, their inability to access services. I have spoken in favour of planning applications for caravan sites and taken a couple of Roma girls around with me for a day for work experience. I also visited the exhibition that the local secondary school organised for the pupils who lived on the Traveller site within the school’s catchment area. This exhibition detailed their way of life and celebrated their culture, and it was key in helping the pupils from the site to integrate into the school and local community.

Most people here will know that the statistics show that Gypsy, Roma and Traveller people are overrepresented in the prison population. Some would say that this shows that they are responsible for more crime than other sectors of society, but this is not the case. Making assumptions about this community, and following up with derogatory comments and name calling, has become an acceptable form of prejudice that most people are prepared to indulge in. That, however, does not make it acceptable. I am grateful for the brief from the Traveller Movement organisation and Justice.

All ethnic minority offenders, but in particular Romani, Roma and Irish Traveller offenders, experience disproportionate outcomes at every stage of the criminal justice system. The Sentencing Council’s revised guidelines, Imposition of Community and Custodial Sentences, were an important step towards addressing historical racial disparities in the sentencing of ethnic minority offenders, through the requirement for a pre-sentence report. The Sentencing Council remains of the view that its revised guidelines as drafted are necessary and appropriate. This is the view of the Traveller Movement, and I share it.

The disagreement between the Lord Chancellor, for whom I have enormous respect, and the Sentencing Council needs to be resolved. It is a stain on our justice system that ethnic minorities are already overrepresented in the prison system when compared with their white counterparts, who often get community-based judgments as opposed to custodial sentences. This clearly demonstrates that some are more equal than others.

Only around 11% of court and tribunal judges are from ethnic minority backgrounds. A pre-sentence report gives them invaluable insight into the background and circumstances of an offender when considering a sentence. It is essential that judges are able to make fair and informed decisions in order to determine the appropriate action for the effective rehabilitation of offenders. If the words are changed, what measures will the Minister put in place to monitor the effect on the ethnic communities? It will not be sufficient to make this change and then not acknowledge the effect on minority groups or the prison population as a whole.

Does the Minister believe that the change will result in more community-based sentences for marginalised ethnic groups or fewer? The Committee needs to believe that sufficient safeguards will be in place as a result of the change the Bill will make. Although the words of the noble Lord, Lord Timpson, on equality before the law appear just and fair, I fear that, if this change is in the Bill, the exact opposite will occur in some cases. This will result in miscarriages of justice in some instances, which I am convinced is not the Minister’s intention.

[Lord Dholakia (LD)]

My Lords, I first offer my apologies for missing the Second Reading of the Bill. I was chairing another meeting at the time and was therefore absent.

I have been involved in race-relations issues since the early 1960s, which, if I may say so, was well before the Lammy review on sentencing. The Lammy review highlights the stark ethnic disparity in all stages of the criminal justice system, and ably describes what happens. It explains that, from the point of arrest, through to prosecution, custodial remand, sentencing and imprisonment, ethnic-minority groups are disproportionately represented and experience disproportionately worse outcomes. The review specifically highlights the importance of pre-sentence reports in tackling such anomalies. It sheds light on individuals from backgrounds unfamiliar to the judges in this country.

My interest in the criminal justice system started in the early 1960s, when I was appointed a member of the board of visitors of HMP Lewes, a predominantly white town in Sussex. The problem was that coachloads of young black people on remand were brought from Brixton to Lewes prison, and the perception of white prison officers was that they were all criminals. It took me quite an effort to convince staff that bringing black people such as doctors, dentists, teachers and technologists into prisons as visitors would demonstrate that they provided a valuable service to the community. I was not surprised by the limited knowledge about different communities within our country and the complete lack of understanding about them. I was well aware that the race relations adviser in the Home Office at the time was stopped and searched at least 35 times when he was driving his car to work or other engagements. That was the situation in those days.

Years later, a parole system review was set up by Douglas Hurd, the Home Secretary, under Lord Carlisle of Bucklow, and I was appointed a member. In the course of our visits to the United States, I was astonished to see the number of black faces in prison. One of the members of the review team was Roger Hood, director of criminological research at Oxford University, and we both came to a conclusion about the need for systematic research so that we did not end up with predominantly black prisons in the United Kingdom. On our return, we approached the Commission for Racial Equality for funding, and it was granted.

We had serious problems with ethnic statistics, which were not kept, except by police forces. We looked at nearly 4,000 cases that had gone through the West Midlands courts, so there was no instance of influencing an ongoing process. In addition, the research looked at 1,000 predominantly white cases as its controlled element. Never before was such a vast research project undertaken. With ethnic data available from police files, and using over 80 sentencing variables, later reduced to about 20, the results were startling. The study revealed a complex pattern of racial disparities influencing variations in the use of custody, sentence length and alternative punishments. It challenged the need to eliminate racial bias from sentencing practices. This was the first major study to examine whether race is a factor in influencing the crown courts in England.

One thing I failed to report was that, when we looked at the statistics of the 4,000 cases before us, we not only identified the discrepancies in the sentencing process itself but were able to identify the judges predominantly involved in this exercise. All these factors appeared well before the Sentencing Council was established in 2010. Despite this, there are still a large number of black faces in our prisons compared with their representation in our community. The same applies to women in prison.

The Government have been wrong in the past and will be so in future. The number of ethnic minority faces will rise in our prisons. A good PSR will allow a judge and probation officer to do sentence planning, with a higher number of community sentences rather than custodial sentences. We need to understand that good sentence planning allows us proper rehabilitation and resettlement instead of planning for gloom and doom. We need a system that is effective and less costly in future.

I am also delighted to support the amendment from the right reverend Prelate the Bishop of Gloucester.

I have racked my brain to find any logic as to why the Bill is necessary. It is a fact that the public and political world is conditioned by gut feeling rather than by examining the outcomes of social research. We are often reliant on prisons as a means of dealing with offenders instead of assisting reforms. There is a crying need to give priority to crime prevention and diverting offenders from the criminal justice system.

I often ask myself: are women’s prisons necessary? I look to our judiciary to ensure that courts should send to prison only those whose offending makes any other course of action unacceptable but, more importantly, to ensure that those sent to prison should not stay there for any longer than is absolutely necessary.

The pattern of crime changes from place to place and from generation to generation. There is ample research into the causes of crime and a good deal of information about how society could respond. I am grateful to one of my colleagues, Bela Mongia, a human rights lawyer, and Janey Starling, who has been supporting Level Up’s No Births Behind Bars campaign for a while now.

Unless we take measures of this kind now, it will be very difficult for overstretched prisons to provide regimes which vulnerable inmates need. We still continue with short sentences which serve little purpose. They are too short for sustained rehabilitation programmes but long enough for people to lose jobs and accommodation and to weaken their family ties. Most of these offenders would be better dealt with by community orders which can provide a longer period of supervision to address their offending behaviour—a point well made by the noble Lord, Lord Marks.

I have repeatedly urged Governments to legislate to make sentencing guidelines take account of the capacity of the prison system. At a time when all other parts of the system have to work within the reality of limited resources, there is no reason why sentences should be exempt from this provision.

The campaign has achieved extensive media coverage and continues to work towards an end to the imprisonment of pregnant women and mothers. It has the support of the Royal College of Midwives, the Royal College of Obstetricians and Gynaecologists, and the Association of Child Psychotherapists.

The Sentencing Council has credited this organisation in its decision to introduce two key guidelines: a new mitigation factor for pregnancy guideline, and a new imposition of community and custodial sentences guideline. These avoid custodial sentences for pregnant women and new mothers on account of the risks.

I do not believe there are important sources within the Home Office or Justice Department who possess the expertise required in such matters. I believe the Minister is misguided in reaching a decision on these matters. It is not right to have any birth certificate which identifies a place of birth as “HM Prison”. Public opinion polling shows that the majority of people want to see pregnant women and mothers given community sentences.

[Baroness Hollins (CB)]

My Lords, I will speak briefly about definition, and in particular the lack of definition of “personal characteristics”. There is a possibility that the Bill could have unintended consequences for two groups that I have a particular interest in: first, people with learning disabilities and autistic people, and, secondly, mothers and their children.

On the first point, offending behaviour by people with learning disabilities and autistic people is often a consequence of environmental failures, and custodial sentences do not reduce offending for these groups. PSRs are essential because they may not be easily recognisable without a pre-sentencing report. It is quite worrying, especially at a time when it seems as if new mental health legislation may not adequately develop the community resources that are needed to keep them safe. That is one issue.

I specifically want to speak about Amendment 16, introduced by the right reverend Prelate, and agree with the points she made. I am a retired psychiatrist with a specialism in child psychiatry and psychotherapy, as well as learning disability and autism. I am concerned about the impact this may have on maternal and children’s well-being, in both the short and the long term. The noble Lord, Lord Marks, commented about innocent children, but it is much worse than that. We know unequivocally that perinatal and postnatal periods are critical to the lifelong health and well-being of the child. When mothers are sent to prison, 19 in 20 children are forced to leave their homes at that time. This is not okay.

We have plenty of evidence from developmental psychology, psychiatry and neuroscience that shows that maternal stress and separation during the perinatal period can alter a child’s developmental trajectory. The effects ripple across the child’s whole lifespan, impacting their ability to form secure relationships, regulate emotions, perform in school and thrive in adulthood. That kind of developmental trauma significantly increases a child’s own long-term risk of mental illness, future offending and substance misuse.

17:01

Sitting suspended for a Division in the House.

17:11

[Baroness Hollins (CB)]

I was talking about unintended consequences and the risks of a lack of clarity. I was going to end simply by urging the Minister to reflect deeply on the evidence. We just cannot afford to legislate in ways that risk compounding harm and perpetuating disadvantage.

[Lord Thomas of Gresford (LD)]

My Lords, I realise that it is now 50 years since I was appointed as an assistant recorder; I was involved in sentencing for a very long time until I finally gave up. I later became a recorder, then a deputy High Court judge, and I dealt with many cases. The principle you have to apply, I think, is that the more you know, the better the sentence. For that reason, I fully support everything that has already been said by my noble friends, in particular that this Bill is completely misconceived.

In sitting here, I was trying to think of an illustration. It comes from a case that I did many years ago in the Midlands. It involved a family from south Asia. The wife of the son of the family was in an arranged marriage. She had come over from India or Pakistan—I cannot remember which—and married the son, who was a taxi driver. She could not speak a word of English. She had come over on a tourist visa, I think; in any case, there was something wrong with the visa. She became extremely fat because she ate with the family, then ate again with her husband when he had finished with his taxi business at night. So she stopped eating, and she slowly dwindled away until she was in a desperate condition. However, she was unwilling to go to the doctor. So the son took her to the doctor, but he went in himself and described her symptoms as if he was suffering from them. He got a prescription for the symptoms by pretending that he was the person who was suffering. The poor girl eventually could not walk, was incontinent and so on. She died. The son and both his parents were then charged with manslaughter. The trial took place, with the three of them charged with manslaughter, and they were all convicted. They then came up before the judge for sentencing.

17:15

It is in those circumstances that I look at Amendment 5 tabled by the noble Baroness, Lady Chakrabarti, in particular. In it, she suggests the sentencer should request a pre-sentence report

“where the sentencer believes that their own life experience is particularly far removed from that of the offender”.

Speaking for myself, I would have no idea of the dynamics at work within that family. When I see a Bill which suggests that a pre-sentence report, which is desperately needed in a case like that, should omit race, religion and cultural background—the fact the poor girl could not speak English and so on—it seems absolutely disgraceful. I support all the amendments that have been spoken to in this group.

[Lord Sandhurst (Con)]

My Lords, I did not speak at Second Reading and for that I apologise. On this side of the Committee, we support the direction of travel of this Bill. We agree and endorse the principle that all those before the criminal courts should be treated equally and without special treatment. We have heard, however, compelling arguments from the noble and learned Lord, Lord Burnett, and other speakers about the difficulties with the drafting of this Bill and the way it is framed.

What I will say about the amendments is on the basis that, while we support the purpose of the Bill and in particular stand by our amendments in the third group—we believe they will bring to Parliament its proper role when it comes to guidelines—we see that there are issues with the terms to which these amendments are directed. Having said that, I can deal quite quickly with the amendments, without any disrespect to those who have spoken in support of them.

We believe that Amendment 1, from the noble Baroness, Lady Chakrabarti, would detract from the Bill. We refer to our amendments in the third group and say that what is contained there would enable Parliament to address the points the noble Baroness made in practice. Similar arguments apply to Amendment 3, tabled by the noble Baroness, Lady Hamwee. We do not favour this amendment and believe it goes too far in reversing the purpose of the Bill. We listened with great respect, as I have already said, to the arguments advanced by the noble and learned Lord, Lord Burnett, which we think have great force. We can see that there could be unforeseen and unintended—perhaps they are foreseen, but they are certainly unintended—adverse consequences. With this and the other amendments, we await with interest what the Minister has to say in reply.

We would make similar observations in respect of Amendment 4, from the noble Lord, Lord Marks, and Amendment 5, which we believe, to the extent that it adds to the Bill, detracts from its message and is a move in the wrong direction. On Amendment 6, again from the noble Lord, Lord Marks, we advance the same reasons as we have done in respect of the other amendments, and his Amendment 4.

On Amendments 11 and 12, we have nothing to add to what I have said before, but we believe that the Government must address the arguments advanced to ensure that the Bill is clearly drawn and does not have unintended adverse consequences that simply make the situation worse. We invite the Government to look carefully at this and, indeed, the aims of Amendments 12 and 13, although we believe that the Bill is right to focus in the direction that it does.

The noble Lord, Lord Beith, and the right reverend Prelate the Bishop of Gloucester also raised important specific points in relation to specific matters. Again, we will be interested to hear what the Minister has to say, but we see merit in the view expressed by the Constitution Committee, not in respect to those amendments in particular but, of course, in relation to other amendments. That is all that I propose to say at this stage in respect of this group.

[The Minister of State, Ministry of Justice (Lord Timpson) (Lab)]

I thank noble Lords for the careful consideration that they have clearly given the Bill, and I hope that I can reassure them on many, if not all, the points made. I also appreciate their kindness to me in their wise assumption that I am in the presence of some of the world’s experts on this subject, and I am not one of them—but I hope that I address all the points that noble Lords have raised.

I say to the noble Baroness, Lady Bakewell, that I am very grateful to her for the work that she does in supporting Gypsy, Roma and Traveller communities, and I am happy to continue to engage with her on that subject. I have already had a meeting with the group as well.

In bringing forward the Bill, the Government are seeking to ensure that the sentencing guidelines do not lead to differential treatment before the law. To do that, the Bill prevents relevant guidelines about pre-sentence reports from referring to offenders’ different personal characteristics. A non-exhaustive list of illustrative examples of personal characteristics is included in the Bill, including race, religion or belief or cultural background. This list was developed with reference to the content of the Sentencing Council’s revised imposition guideline.

Before I set out the Government’s position, I thank the noble and learned Lord, Lord Burnett, for his contribution to this debate, which I will ask the team to consider fully ahead of Report.

Amendments 1, 11 and 13, tabled by the noble Baroness, Lady Chakrabarti, would replace reference to “personal characteristics” in Clause 1 with reference to “protected characteristics” in the Equality Act 2010. We have considered the proposed change to the wording carefully and, while we understand the logic behind referring to the set of protected characteristics provided for in the Equality Act, I am not persuaded that this would meet the Government’s policy objective.

The revised imposition guideline refers to members of a “cultural minority” within its list of cohorts for which a pre-sentence report would “normally be considered necessary”. As cultural background is not a protected characteristic provided for in the Equality Act, if the Bill was to be amended in the way proposed, the council would be free to provide within its guidelines that cultural minorities received preferential access to pre-sentence reports, in turn risking differential treatment before the law. The use of the broader term “personal characteristics” in the Bill ensures that our policy intent is met and that all the issues raised by the imposition guideline are appropriately addressed. I am happy to carry on the conversation with my noble friend and look forward to our meeting later this week. I therefore urge her not to press her amendment.

Amendment 3 in the name of the noble Baroness, Lady Hamwee, would remove the Bill’s current blanket restriction on sentencing guidelines about pre-sentence reports from referring to offender’s different personal characteristics. Instead, the amendment would require sentencing guidelines to include references to personal characteristics when they are also considered to be related to an offender’s personal circumstances. I am mindful that there has already been extensive debate in this House and in the other place about the Government’s use of the term “personal characteristics”, but I hope that it may nevertheless be helpful if I briefly summarise the Government’s approach.

The Government acknowledge that the concept of “personal characteristics” is a broad and flexible one that is not intended to have an exhaustive definition. However, to put it simply, personal characteristics refer to who or what someone is. They are things that one cannot, or should not, be expected to change; the Bill sets out some illustrative examples such as race, religion or belief, and cultural background. On the other hand, personal circumstances are more temporary and contingent. They are more about what someone is doing, what they have done or what has been done to them.

The Government completely accept that the line between characteristics and circumstances may not always be clear and that some attributes, such as pregnancy, could reasonably be described as both a characteristic and a circumstance. Ultimately, however, I must stress that the Government’s objective in bringing the Bill forward is to ensure equality before the law by preventing the Sentencing Council making guidelines that risk differential access to pre-sentence reports. The Government remain of the view that the reference to “personal characteristics” in the Bill is the most robust way of meeting this objective; I therefore urge the noble Baroness to withdraw her amendment.

Amendments 4 and 6, tabled by the noble Lord, Lord Marks, would loosen the Bill’s restriction on sentencing guidelines about pre-sentence reports referring to offenders’ differential personal characteristics. It would do this by allowing sentencing guidelines to include such references where the Sentencing Council considers that this would prevent inequalities in sentencing outcomes. Although the amendments are well intentioned—I fully agree with the noble Lord on the importance of doing what we, as parliamentarians, can to tackle inequalities in outcomes across the justice system—we are not persuaded that these amendments are appropriate, for two key reasons.

First, they risk undermining the Bill’s fundamental objective of ensuring equality before the law by ensuring that sentencing guidelines do not include any provision that risks differential access to pre-sentence reports. Secondly, the Government remain of the firm view that it is for Ministers and Parliament, rather than the Sentencing Council, to consider how best to tackle disproportionate outcomes across the criminal justice system; it is not something that we should seek to address using differential treatment before the law during sentencing.

I thank the noble Lord, Lord Dholakia, for his speech highlighting the issues around racial bias and disproportionality in the justice system. We recognise the issues that he spoke about, but, as I have said, we believe that these are matters for policy, not the Sentencing Council, to address.

As I mentioned at Second Reading, work is continuing at pace on the review commissioned by the Lord Chancellor of the data held by the Ministry of Justice on disparities in the criminal justice system. This will be key in helping decide what we must do to address disparities; the House will be updated in due course. I hope that this reassures the noble Lord, Lord Marks, that this is an issue the Government take incredibly seriously and are determined to address, and that he will agree not to press his amendments.

I acknowledge the wider comments from the noble Lord, Lord Marks, about the need for legislation, including whether we could postpone this legislation until after David Gauke has published his review. I remind the Committee of the timelines. The guidelines were due to come into effect on 1 April. We sought to address this issue via constructive conversation with the Sentencing Council. As the Sentencing Council did not agree to change the guidelines, we introduced legislation to address the specific concerns that we had around equality before the law. That is why we had to act in the way we have: with primary legislation.

Amendment 5, tabled by the noble Baroness, Lady Chakrabarti, would provide a list of non-exhaustive examples of instances where sentencing guidelines could recommend that sentencers consider requesting pre-sentence reports. Although we have carefully considered the case for adding these criteria to the Bill, we are not persuaded that this is necessary, for two key reasons.

First, I re-emphasise that nothing in the Bill restricts sentencing guidelines 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. Sentencers will therefore retain discretion to decide whether a pre-sentence report should be ordered, considering the specifics of the case before them.

Secondly, I am mindful that the revised imposition guideline already includes relevant provision that meets the spirit of this amendment, and it will be unaffected by the Bill. I agree with the Lord Chancellor’s remarks in the other place that the council “got things right” in the paragraph of the revised guideline that 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”.


I agree that PSRs should be used more widely. My work in supporting the Probation Service needs to go hand in hand with this ambition. I hope this reassures the noble Baroness and that she will not press her amendment.

17:30

Amendment 12 in the name of the noble Baroness, Lady Hamwee, would remove “cultural background” from the non-exhaustive list of personal characteristics specified in the Bill. I hope it may be helpful to take this opportunity to briefly explain that the Government have included this wording because it picks up on wording that the Sentencing Council itself used in its revised imposition guideline. The guideline suggests that a pre-sentence report would “normally be considered necessary” for cultural minorities, among other cohorts. We do not know which groups specifically the Sentencing Council had in mind when it included cultural minorities in its list. However, the Government’s position is clear: no one should receive preferential treatment based on their personal characteristics. Removing this line could create doubt as to whether guidelines may make provision regarding pre-sentence reports with reference to offenders’ cultural background. I therefore urge the noble Baroness not to press her amendment.

Amendment 14 in the name of the noble Lord, Lord Beith, seeks to ensure that the Bill does not prevent sentencing guidelines on pre-sentence reports from including provision which is based on recent case law. During debates in this House and the other place, the Lord Chancellor and I have both been clear that the Bill does not affect Court of Appeal case law that has covered the types of cases where pre-sentence reports are necessary or desirable, including examples around pregnant women and women who have recently given birth, young defendants and vulnerable defendants.

We have also been clear that while the Bill prevents sentencing guidelines about pre-sentence reports from referring to offender’s different personal characteristics, it does not restrict a court’s obligation, under section 30 of the Sentencing Code, to obtain pre-sentence reports unless it considers it unnecessary. We therefore do not consider this amendment necessary and urge the noble Lord not to press it.

Amendment 16 in the name of the right reverend Prelate the Bishop of Gloucester is intended to allow sentencing guidelines to continue to advise sentencers to seek pre-sentence reports in cases involving pregnant or post-natal women. I am pleased that Dr Shona Minson was mentioned as a leading expert in this field. Fortunately, she is a member of the Women’s Justice Board that I chair.

In considering this amendment, I have been particularly mindful of the challenges that these women face in custody. Although I am not persuaded to accept the amendment, I fully recognise the strength of feeling on this and would like to explain the Government’s approach in drafting the Bill and some of the important wider work we are doing to support women in custody.

When drafting the Bill, the Government considered how best to meet our policy objective of ensuring equality before the law. As part of this, we carefully considered whether the Bill could more tightly limit the restrictions it places on sentencing guidelines about pre-sentence reports referring to select cohorts of offenders based on their personal characteristics. This approach would have been similar in spirit to the proposed amendment in meaning that the Sentencing Council would be free to direct sentencers to obtain a pre-sentence report for cohorts that were not specified in the Bill. This is not straightforward, as we quickly enter territory where we would be treating different groups in different ways, prioritising some over others.

The Government have therefore opted for a more general approach, whereby the Bill prevents sentencing guidelines about pre-sentence reports being framed by reference to any personal characteristic of an offender. On balance, we consider this to be the best way of ensuring that offenders receive equal access to pre-sentence reports. I also emphasise that, 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.

We know that the risks to a woman’s pregnancy are increased if she is in custody. That is one reason why we asked the independent sentencing review to look at the needs of vulnerable groups, such as women, and we await its report. More widely, the Lord Chancellor and I have established a Women’s Justice Board, which has met twice this year. Its objective is clear and ambitious: to reduce the number of women going to prison and increase the number supported in the community. One of the initial key areas of focus for the board is improving outcomes for pregnant women and mothers of young children across the criminal justice system. I thank the noble Baroness, Lady Hollins, for her contribution and the professional and academic expertise she brings to this debate. I hope that this has reassured the right reverend Prelate and that she will not press her amendment.

[Lord Beith (LD)]

Can the Minister clarify something he has not covered? It is how we deal with things that perhaps the Government regard as personal characteristics but that are not listed in the Bill, although they could fall within the non-exhaustive character of that provision in the Bill. Is it the Government’s view that the Sentencing Council has some way of knowing what such characteristics are? Various examples have been mentioned, such as autism or having been brought up in local authority care, which I mentioned. Would the council be acting illegally if it added further personal characteristics to those it was issuing guidance about when the Government did not agree with it?

[Lord Timpson (Lab)]

I thank the noble Lord for the question. So I get the answer technically correct, I will write to him and other Members here.

[Lord Carter of Haslemere (CB)]

My Lords, I hope it is not inappropriate to speak; I have not tabled any amendments. The noble Lord, Lord Marks, suggested a pause, since we are expecting the Gauke review imminently. The Sentencing Council has not so far commenced its guidelines, pending this Bill, but might it agree to continue that non-commencement until we know what the Government will do in response to the Gauke review, so that this Bill does not need to be progressed until we know exactly what the Gauke review legislation will look like? It may well overlap and possibly conflict with what is in this Bill. I just wondered whether the Sentencing Council could be persuaded to postpone its non-commencement, pausing this Bill until we know the Gauke outcome.

[Lord Timpson (Lab)]

The Sentencing Council was very helpful in pausing its decisions. The noble Lord is right: there are a lot of moving parts at the moment, and we are waiting with bated breath for news of publication dates. But I am aware that we also want to pursue and get on with the fact that we do not want people to be treated unequally in front of a court.

[Lord Thomas of Gresford (LD)]

The Lammy report made it clear that there is inequality for certain groups because of their particular characteristics. My noble friend Lady Bakewell referred to the Gypsies. I declare an interest as a Welsh Gypsy, and I thank her for her support. What research is there to show that the obtaining of a PSR causes preferential treatment? What research is there to show that a judge will give a more lenient sentence if he has a PSR before him? Is there any and, if not, why not, before a Bill like this is brought forward? Surely the noble Lord will agree with what I said before: the more a sentencer knows about a person, the better it is and the better the sentence, both for the individual and for the community.

[Lord Timpson (Lab)]

We are doing a large amount of work on collecting the data to understand the issue more widely, but I will write to the noble Lord with the exact information.

[Lord Thomas of Gresford (LD)]

There is no research, and this Bill has been brought forward on a premise that, from my experience, is wrong. It is that the provision of a pre-sentence report means that the judge will go easier upon the defendant. I think that is wrong and, without research, I do not see how you can bring this Bill forward.

[The Lord Bishop of Gloucester]

I appreciate that the Minister is in an interminable situation, but he did not actually respond to my key point, which is that there is an existing protection including the current mitigating factor for pregnancy. I drew attention to what was published in April last year, which already directs sentencers to obtain a PSR before sentencing and to adjourn sentencing until one is available, but this Bill is now making that unlawful. That is my key point.

[Lord Timpson (Lab)]

Again, I apologise for not being too repetitive, but I am very keen on making sure that I am accurate in everything that I say. I will write to the right reverend Prelate.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all Members of the Committee who made their very forensic and clear points about the Bill and the manifold problems with it. I am also grateful to my noble friend the Minister, who replied with about as much kindness, courtesy and elegance as it is possible to do in these very tricky circumstances. I will not be pressing my amendments today, and I am glad that he and his advisers will reflect a little more before Report, which I think they would be wise to do.

I will just leave my noble friend with one thought about the points that I made. He has spoken often about preferential treatment, and I remind him of what I said about the high steps to my restaurant or hotel. If I add a ramp, a hoist or a lift for the person in the wheelchair to gain access to a service that they would not otherwise get access to, is that preferential treatment or a genuine, progressive, liberal and even one-nation Conservative attempt to level things out a little? I know what I think, and I suspect what some other Members of this Committee might think as well, but with that I beg leave to withdraw my amendment.

Amendment 1 withdrawn.

[The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)]

My Lords, I should inform the Committee that, if Amendment 2 is agreed to, I cannot call Amendments 4, 11, 12 or 13 because of pre-emption.

Amendment 2

Moved by

[Baroness Hamwee]

2: Clause 1, page 1, leave out lines 5 to 15 and insert—
“(4A) But sentencing guidelines about pre-sentence reports must include provision framed by reference to the factors considered in the case of each offender (“O”) most likely to reduce offending by O.”Member’s explanatory statement
This amendment would ensure that pre-sentence reports include information relating to reducing offending.

[Baroness Hamwee (LD)]

My Lords, I will speak also to my Amendment 8 in this group. We ended the last group by using “preferential” as distinct from “different”. My Amendment 2 is intended to be a positive one. I do not think that factors considered to be most likely to reduce offending by the offender would be preferential. They might be different, but they would be different while responding to the characteristics and maybe circumstances of the offender. The Bill is negative, as some noble Lords said on the last group, and I am sure we all agree about the reoffending point. I accept that is not the only purpose of sentencing but it is perhaps most closely related to pre-sentence reports. So I suggest that that acknowledgement should go up front.

Amendment 8 is also a point of emphasis. Seeking a pre-sentence report is a matter for the court, on the basis that we have been discussing as it is now and as it will be. The Bill is about guidelines on pre-sentence reports. As I understand it, there is no restriction on the content of them—that is a matter for probation to pursue—and neither is there any restriction on what the court in any event orders. I would be very surprised if the Minister disagrees with me on any of this, but I would like to get his agreement on the record. I beg to move.

17:45

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

My Lords, I have spoken at length on my amendment in the last group. My amendment here is to suggest, as I believe is completely uncontroversial, that sentencing guidelines about sentencing reports must promote greater use of such reports as part of sentencing. Whether that is a matter for the sentencing guidelines or for sentencers generally, the need for more and better pre-sentence reports is of extreme importance. I believe that everything the Minister has said on this subject since his appointment shows that the Government agree with that position. So I propose to say nothing more about that.

Amendments 3 and 8, to which my noble friend Lady Hamwee has spoken, are non-controversial. Whether they are treated as probing amendments at this stage perhaps matters little, but we are trying here to get across the principles. I do not think there is any need for me to say more on this group.

[Lord Sandhurst (Con)]

My Lords, I will first deal with the two amendments of the noble Baroness, Lady Hamwee. We believe that Amendment 2 is unnecessary; probation officers should be left to get on with their jobs. The Bill does not prevent them addressing matters likely to reduce offending and we should have some confidence that they will share this view when it is necessary and appropriate. Why would they wish not to go down that route? That, after all, is what their job is about: preventing reoffending.

We do not believe that Amendment 8 is necessary, but we are sympathetic to where it goes. Again, this is on the basis that our amendments in group 3, which will bring the guidelines before Parliament, are accepted and acted on, so that Parliament gets to look at what is actually happening in the guidelines themselves.

Again, we are sympathetic to the aims of the amendment of the noble Lord, Lord Marks, but, although reports are necessary in appropriate cases, they are not necessary in every case. It is the probation officer who is best placed to alert the court in cases where a report is not proposed. A probation officer will be in court and can speak to defendants before sentencing in court.

In my experience, having sat in the court myself as a recorder for many years—and even, many years before that, having appeared in Crown Courts on quite a number of occasions—a probation officer is best placed to alert the court to the benefit of obtaining a report, or saying that they actually do not need one in a given case. However, that can be left to Parliament when it looks at the guidelines, if it gets the chance to do so.

[Lord Timpson (Lab)]

My Lords, I am grateful to have the opportunity to speak about probation and reducing reoffending—topics that are very important. I would like to use this opportunity to shine a light on the important work that probation practitioners do to support the sentencing process. I hope I can reassure noble Lords about the processes that are already in place.

I will speak first to Amendment 2, tabled by the noble Baroness, Lady Hamwee. This would require the Sentencing Council to include references to the factors most likely to reduce reoffending in its sentencing guidelines on pre-sentence reports. While I cannot support this amendment, as it would remove the Bill’s prohibition on sentencing guidelines on pre-sentence reports being framed with reference to offenders’ personal characteristics, I agree that the role of probation in supporting reducing reoffending is an important one.

The purpose of a pre-sentence report is defined by section 31 of the Sentencing Code as being a report which

“is made or submitted by an appropriate officer with a view to assisting the court in determining the most suitable method of dealing with an offender”.

A completed pre-sentence report will therefore provide sentencers with an effective assessment of risk, alongside targeted assessments of individuals’ needs, by confidently articulating suitable proposals that balance the needs of public protection, punishment and the rehabilitative aspects of sentencing.

Depending on the specific circumstances of the case, the probation practitioner writing the pre-sentence report will obtain information from both the defendant and external sources in respect of mental health, drug and alcohol needs and services, accommodation, finances and youth justice contact, as well as consideration of wider circumstances that could be indicative of additional vulnerability or complexity for the defendant.

A pre-sentence report will always include an assessment of the risk the defendant poses and to whom, including the risk of serious harm and likelihood of reoffending analysis. In making the sentencing recommendation, the pre-sentence report’s author must also consider the purposes of sentencing under the Sentencing Code, including the reduction of crime, and reform and rehabilitation.

The Probation Service has always had to balance public protection with rehabilitation, and striking the right balance is a long-standing part of the culture of the service, which is reinforced by the messages and expectations set not just by senior operational leaders but by me and other Ministers. I hope I can therefore reassure the noble Baroness, Lady Hamwee, that rehabilitative principles have always been, and will continue to be, at the heart of the pre-sentence advice provided to courts, and that she will feel able to withdraw this amendment.

Amendment 7, tabled by the noble Lord, Lord Marks of Henley-on-Thames, proposes imposing a requirement on sentencing guidelines on pre-sentence reports to promote a greater use of such reports as part of sentencing. I share the noble Lord’s desire to see greater use of pre-sentence reports. As I have set out, a good PSR assesses the offender’s behaviour and the risks they pose, and recommends sentencing options tailored to those risks and needs. We know that the number of pre-sentence reports has declined, with a 44% reduction over the last decade.

There have been several reasons for this, but it may well be that judicial perceptions of probation’s capacity to deliver PSRs may influence that decision. Judicial confidence in probation is a key priority for me and for the Lord Chancellor, and I hope I can reassure noble Lords about the steps we are taking to maximise probation’s ability not just to deliver PSRs but to deliver them in a timely way and to a high quality.

First, we are continuing to invest in increasing staffing levels in probation. Last year, we recruited 1,000 new trainee probation officers, and this year we have raised that target to 1,300. That continued investment in staff is helping us fill vacancies, including in probation court teams, where last year we increased our target staffing levels.

Secondly, we are taking steps to increase the capacity of probation staff providing advice to courts. We are beginning to roll out a new digital service, prepare a case for sentence, that links to HMCTS systems and which means that listing information about upcoming cases comes straight to probation staff, rather than having to be looked up and rekeyed into the new system. This in turn will help probation court teams do the right preparation in advance, so they can identify cases in which a court is likely to need further information and have that ready on the day if the court requests a report.

We are also improving access to video-link facilities to promote greater use of remote interviewing, so that, where an offender is remanded in custody and the court adjourns for a pre-sentence report to be written, probation staff can easily carry out an interview to inform the report. Through measures such as these, we can better focus probation staff’s precious time on providing the court with the right information, rather than on chasing up data from partner agencies or having to react to court requests at short notice.

Thirdly, we are trying to maximise the different opportunities for courts to request pre-sentence reports. For example, the PSR before plea scheme allows for a pre-sentence report to be written early on in certain cases where there is an anticipated guilty plea, and it is likely that the defendant will be sentenced in the magistrates’ court.

I hope I have reassured the noble Lord about the Government’s commitment to increasing probation’s ability to provide the best possible advice to courts, and that he will be happy as a result not to press his amendment.

Amendment 8 is intended to prevent sentencing guidelines restricting the contents of a pre-sentence report or interfering with a court order. I take this opportunity to briefly reassure the noble Baroness, Lady Hamwee, that nothing in the Bill as currently drafted, nor sentencing guidelines themselves, will do this. Following the Bill’s passage, sentencers will retain their current discretion to decide whether to order a pre-sentence report in appropriate cases. All the Bill does is ensure that the content of sentencing guidelines about pre-sentence reports does not provide for differential access to pre-sentence reports for certain groups over others.

The Bill also does not impact the types of sentencing options available to the court. Sentencers will retain their discretion to impose the sentence that they consider most appropriate, based on the specifics of the individual case before them and in line with any relevant sentencing guidelines. I hope that the noble Baroness is reassured and that she will not press her amendment.

[Baroness Hamwee (LD)]

My Lords, that was the response I expected, and I thank the Minister for it. On the response from the noble Lord, Lord Sandhurst, I shall take the sympathy. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Amendments 3 to 8 not moved.

Amendment 9

Moved by

[Lord Sandhurst]

9: Clause 1, page 1, line 7, at end insert—
“(4B) Sentencing guidelines about pre-sentence reports must be submitted to the Secretary of State by the Council and the Secretary of State must give effect to those guidelines by regulations.”

[Lord Sandhurst (Con)]

My Lords, I shall be a bit longer on this amendment than I have been hitherto. I shall speak to Amendments 10 and 17 while moving Amendment 9, which are in my name and that of my noble friend Lord Wolfson of Tredegar.

The draft guidelines produced by the Sentencing Council could 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. Undoubtedly, this state of affairs has been damaging to public confidence in the justice system. Unfortunately, this Bill does little to address the underlying issues. It only partly addresses the problem, leaving many concerns unresolved, and it risks creating new problems down the line.

This Bill would prevent sentencing guidelines referring to personal characteristics when a court is considering whether a pre-sentence report should be requested. However, it only resolves the issue presented by these particular guidelines and does not provide Parliament with the power by regulations to amend or reject guidelines more generally, failing to prevent this or a similar situation occurring again.

The Bill is a necessary but not sufficient or adequate step in ensuring equality before the law. While a step in the right direction, it does not offer a comprehensive solution, and the amendments that we advance look to rectify this flaw. These amendments would ensure that in future sentencing guidelines on pre-sentence reports cannot simply be issued by the Sentencing Council without democratic oversight. They would require that guidelines on pre-sentence reports drafted by the council must be subject to an affirmative resolution in both Houses before they come into force as definitive guidelines. We submit that that is a basic safeguard of democratic accountability, ensuring parliamentary oversight on sensitive sentencing matters.

Without these amendments, history may repeat itself. The same council will be free to bring forward, as it wishes, ideological frameworks that Ministers will be powerless to stop before the damage is done. Had these guidelines gone unchallenged, we would now have sentencing based on identity politics, undermining public confidence in the system. Taken together, Amendments 9,10 and 17 would create an important safeguard, ensuring that no future set of guidelines in this field, at least, could bypass sufficient parliamentary scrutiny and oversight. We commend them to the House.

18:00

[Baroness Hamwee (LD)]

My Lords, I understood from the noble Lord’s explanation of the amendments that this group is about parliamentary oversight. I am not clear from Amendment 9 whether the submission of guidelines to the Secretary of State is submission for approval. I am also interested in the fact that, as I read the amendment, the Secretary of State would be required to give effect to the guidelines. That raises a question: is the Secretary of State required to give effect to them whether or not she agrees them? I cannot resist this opportunity to say that we all refer to regulations as if they are a panacea but we all know that amendment to them is very rare.

[Lord Burnett of Maldon (CB)]

My Lords, I shall make one or two observations on this group. I echo what the noble Baroness, Lady Hamwee, said, but, before anyone considers this additional process, it is important to have in mind what already exists. All guidelines that the Sentencing Council eventually issues are subject to extensive consultation—with the public consultation and with interested bodies—but, more importantly, they are subject to political consultation. That arises in two quite different contexts.

The first is that the Lord Chancellor and Secretary of State for Justice are consulted. Of course, that happened in connection with this guideline, which became controversial although it was not seen as controversial by Ministers who were then in the Ministry of Justice. That is not the end of the political involvement, though, because a statutory consultee for all sentencing guidelines is the Justice Committee of the House of Commons. Again, in this particular instance, the Justice Committee was consulted. As all here know, that committee comprises Members of Parliament from a broad cross-section of parties, and, as it happens, they, too, thought it uncontroversial. So there are those two political consultees. However, that is not the end of the matter because the Secretary of State for Justice and Lord Chancellor have on the Sentencing Council itself an observer who is able, on behalf of the ministry, to raise any matters of concern.

So, with respect to the noble Lord, Lord Sandhurst, and this amendment, it seems to me that upsetting the extremely carefully calibrated scheme enacted by the 2009 Act is unnecessary.

[Lord Beith (LD)]

My Lords, I do not recollect a regulation-making power that requires the Secretary of State to bring forward the regulations. Normally, such powers are permissive—the Secretary of State “may” bring forward regulations—or indicate an area where there must be regulations but the precise ones are brought forward at a decision by the Secretary of State.

More generally, I worry that, per the phrase used by the noble Baroness, Lady Chakrabarti, this looks a bit like clipping the wings of the Sentencing Council rather than recognising that it is a valuable arm’s-length body with processes—they have just been helpfully described by the noble and learned Lord, Lord Burnett—that ought to serve the purpose of ensuring that the Government are not blindsided by things that come from the Sentencing Council; indeed, they need not have been in this case. Going much further and introducing this fairly complex mechanism runs the risk of making the Sentencing Council appear less authoritative to those who have to take account of what it does.

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

My Lords, this group of amendments raises some interesting and quite difficult points. Amendments 9, 10 and 17 were introduced by the noble Lord, Lord Sandhurst, and also proposed by the noble Lord, Lord Wolfson of Tredegar. On first reading, they appear to set out, albeit in a more elegant form—as one would expect, I suppose I should say—the effect of an amendment introduced in the other place by the Conservative shadow Secretary of State Robert Jenrick. Mr Jenrick’s amendment sought to give the Secretary of State—that, is the Executive—a complete veto over the guidelines proposed by the Sentencing Council. His language—I abbreviate it slightly—was that the council must

“obtain the consent of the Secretary of State before issuing sentencing guidelines as definitive guidelines”.

That is what appeared in the amendment paper for the House of Commons, to which Mr Jenrick spoke.

That ran entirely across and counter to what we say is the proper constitutional position. The starting point is that the Sentencing Council is an independent body created by statute, with the job of advising judges on sentencing and the functions that I outlined in the debate on group 1. The judges are and must remain independent, and the judicial function is an independent function that must be, and always has been, independent of the Executive and Parliament. That is not to say that there should or should not be parliamentary oversight. Parliament sets the rules; it sets the maxima for sentences, it sometimes sets the minima for sentences, and it sets the political context. But the way in which the relationship between the judiciary, the Sentencing Council and Parliament functions has been explained by the noble and learned Lord, Lord Burnett, and his explanation demonstrates the subtle interrelationship between Parliament and the judiciary in this process. It is carefully drawn, and it is very important that that careful distinction is maintained.

The language in Amendment 9 is rather different from the language in the amendment of Robert Jenrick in the other place. But it is strange and it has a strangeness built into it that my noble friend Lord Beith picked out, because Amendment 9 would provide that sentencing guidelines about pre-sentence reports “must be submitted” to the Secretary of State by the Sentencing Council, and the Secretary of State

“must give effect to those guidelines by regulations”.

The point that my noble friend Lord Beith made was that it is not a matter for the Secretary of State to give effect to any guidelines by regulations, or indeed to do anything else by regulations. It is we in Parliament who make regulations. Certainly, they must be laid by the Secretary of State, but then Parliament has the decision-making power. Indeed, in the further amendments laid by the noble Lords, Lord Sandhurst and Lord Wolfson of Tredegar, this is subject to the affirmative resolution. As it stands, I do not understand how the Secretary of State can be required by statute to give effect to those guidelines by regulations when it is for Parliament to accept or deny approval to such regulations.

Furthermore, it seems to me that the overall burden of the first part of Amendment 9—when it says

“must be submitted to the Secretary of State”,

followed by the implication that the Secretary of State has no option but to give effect to those guidelines—gives to the Secretary of State a power that he does not have and denies any function in the approval or the denial of the guidelines to the Sentencing Council, beyond simply proposing them to the Secretary of State.

So it is our position that Amendment 9 is in fact unconstitutional and does not work. It is for the noble Lords who have proposed it to consider how they want to proceed, but I would suggest for now that they withdraw it and come back on Report with something that at least makes constitutional sense before they go any further with this.

[Lord Timpson (Lab)]

Amendments 9, 10 and 17 in the name of the noble Lord, Lord Sandhurst, would require the Sentencing Council to submit sentencing guidelines about pre-sentence reports to the Secretary of State, who would then be responsible for placing these guidelines before Parliament for approval.

As noble Lords will be well aware, the Lord Chancellor has been clear that this situation has highlighted that there is potentially a democratic deficit here. The Government are therefore currently reviewing the role of the Sentencing Council and its powers for developing sentencing guidelines. In doing so, we are fully mindful of the recent developments on the imposition guideline, which have brought us to debating today’s Bill.

I acknowledge and thank the noble and learned Lord, Lord Burnett, for his comments. In conducting the review, the Government are particularly mindful of the special role that the council plays in bridging Parliament and the judiciary on sentencing policy and practice. There are of course significant policy and constitutional matters to carefully consider, alongside considering what recommendations arise from the wider independent sentencing review.

While I acknowledge the noble Lord’s rationale for tabling these amendments, I am not convinced that it would be proper to legislate on this in a piecemeal way, recognising that the amendments capture only sentencing guidelines about pre-sentence reports. I am also not convinced that using this fast-track legislation is the best way of going about this. I therefore urge the noble Lord to withdraw this amendment, but I hope I can offer some reassurance that the Government are keeping all options on the table. Once the review of the council is complete, the Lord Chancellor and I are clear that we are willing to further legislate on this in a more comprehensive way if necessary.

[Lord Sandhurst (Con)]

My Lords, I thank all noble Lords who have contributed to this important debate. The concerns raised today underline the vital necessity of ensuring that our justice system remains fair, impartial and subject to proper democratic accountability.

The three amendments we have just been considering seek to address what we see as a flaw in the current system: the lack of meaningful parliamentary scrutiny over sentencing guidelines that have profound implications for equality before the law. The draft guidelines produced by the Sentencing Council risked entrenching a two-tier justice system. They would have treated defendants differently based on identity rather than the merits of their case; that was unacceptable. Without these amendments, it could happen again.

I am grateful for the excursus given on the consultation process in particular by the noble and learned Lord, Lord Burnett, which was interesting and helpful. However, government must be looking forward to how we manage this process in the future, so that Parliament, if appropriate—and we believe necessary—has the last word on the sentencing guidelines. They are in part for the judges, when they have to give practical effect to what is set out in them, but the fact that the council is an independent body and consults quite widely before the guidelines are promulgated should not mean that Parliament cannot have a look at them and then step in if it believes it appropriate. That is not to tread on the constitutional independence of the courts, because it will be before any sentences are pronounced under the guidelines. It will be just a step in the process, and they will then go to the courts for implementation.

We invite the Government to look at the approach we have advanced, even if the drafting may be imperfect as it stands. The principle at stake is simple: sentencing policy is too important to be left entirely to unelected bodies. Parliament must have the final say on matters that affect the foundational principle of equality under the law. These amendments have the aim of ensuring that, at the very least, guidelines on pre-sentence reports could not come into force without the explicit approval of both Houses. That is not an unreasonable burden; it is a basic safeguard of democratic accountability.

18:15

We have a duty to act. If we do not, we risk repeating past mistakes, allowing ideological frameworks to distort sentencing without recourse. These amendments, or something along these lines, would provide a necessary check—one that balances expertise with accountability.

In the meantime, I am grateful not only for the points made by noble Lords but for the hint the Minister has at least dropped that, in the not too distant future, we might have something along these lines. I certainly drew the impression that he was not unattracted by the idea of the guidelines falling to be approved by Parliament in the future. If I am wrong about that, he will fall to be tested in the future, but I hope there is something in that. For the moment, I beg leave to withdraw my amendment.

Amendment 9 withdrawn.

Amendments 10 to 14 not moved.

Amendment 15

Moved by

[Lord Marks of Henley-on-Thames]

15: Clause 1, page 1, line 15, at end insert—
“(13) Nothing in this section shall require the Council to issue guidance about pre-sentence reports that is not consistent with its duties under section 149 of the Equality Act 2010.”Member’s explanatory statement
This amendment is intended to probe the impact of this Act on any of the Sentencing Council’s duties under the public sector equality duty.

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

My Lords, my two amendments in this group, Amendments 15 and 18, cover two separate topics. The first relates to the public sector equality duty and seeks to provide that:

“Nothing in this section shall require the Council to issue guidance about pre-sentence reports that is not consistent with its duties under section 149 of the Equality Act 2010”.


As your Lordships will be aware, that section provides for the public sector equality duty, which is a duty to work towards eliminating discrimination based on protected characteristics, to advance equality of opportunity and to foster good relations between those with protected characteristics and others who do not have such characteristics.

I raise this issue in Committee because it has been suggested in some quarters that the public sector equality duty might have been compromised or broken by the Sentencing Council’s proposed imposition guideline, which has now been paused. This is a probing amendment to explore what the Government consider to be the position. Our understanding is that paragraph 3 of Schedule 18 to the Equality Act disapplies the equality duty from those exercising a judicial function, or citing on behalf of someone exercising a judicial function, which would apply to the Sentencing Council, so the public sector equality duty is not engaged at all in the sentencing exercise or in the ordering or commissioning of pre-sentence reports—which is, of course, a judicial function, because it is the judge who makes the order.

It would be helpful to ensure that these discussions are not conducted in the shadow of the misunderstanding of where the public sector equality duty applies and where it does not. On the substantive point, which is independent of the jurisdictional point that I have just raised, as to whether the paused imposition guideline would have been in breach of the public sector equality duty if it applied, we would argue that a guideline that had as its plain aim the elimination of inequality in sentencing could itself be found to be discriminatory—and we would not accept that it could.

Amendment 18 is the second amendment in my name in this group. It calls for an independent review of the operation of this Bill, if it becomes an Act, within two years of its passing. In calling for this review, I suggest that it is important to keep the work of the Sentencing Council generally under review, in the light of any applicable legislation. That is particularly so if this Bill becomes law because it is likely to be overtaken, or at least supplemented, in large part by reforms to be introduced both as a result of the Gauke review that is to report extremely soon and, no doubt later, as a result of the Leveson review into the criminal courts and their wider working. There will therefore be a constant need for review to ensure that contradictions do not arise or that any such potential contradictions are eliminated between this legislation and further reforms.

On a broader basis, it is important to monitor the success or failure of the attempt to address inequality of outcomes in the sentencing process. I know that the Minister is aware of and alive to the inequality of outcomes and determined to address it. I know that he regards our objections to this Bill on the basis that it does not do so as perhaps ill founded; nevertheless, it is important to keep under review whether the Bill actually hampers the addressing of inequality of outcomes.

On the second point as to why it is important to monitor progress, the Government are dedicated and committed to ensuring that pre-sentence reports are more widely available and in future more thoroughly prepared, and the resources being applied to the Probation Service are dedicated in part to that end. Therefore, it is important to monitor the effect of any such improvement in the availability and quality of pre-sentencing reports on reducing reoffending and, ultimately, reducing the number of people in custody. That justifies having a review after two years of the operation of this Act.

[Lord Sandhurst (Con)]

My Lords, I can be brief. On the noble Lord’s first Amendment, Amendment 15, we would not for our part want the Sentencing Council to go down the road of issuing guidance inconsistent with its duties under the Equality Act.

As for Amendment 18 and the review, we do not have a view on this matter. I note that with practically every Bill that comes before this House there is a call for a review at some point, whether it is one year, two years or five years down the road. The Sentencing Council must by now be well aware of public concerns and the concerns of legislators, and it would itself want to know how things are going. It is quite likely to call for a review if so minded. We are neutral on that topic.

[Lord Timpson (Lab)]

Amendment 15, in the name of the noble Lord, Lord Marks, seeks to ensure that any guidelines about pre-sentence reports issued by the Sentencing Council are fully compliant with the public sector equality duty under Section 149 of the Equality Act 2010.

I am not persuaded that this amendment is necessary, given the Bill’s key aim is to protect the principle of equal treatment before the law. It does this by removing the effect of the changes the Sentencing Council introduced in its revised imposition guideline, which provides that a pre-sentence report will “normally be considered necessary” for certain offenders, with reference to their personal characteristics, and prevents the council from reissuing guidance to the same effect.

Furthermore, nothing in the Bill impacts the Sentencing Council’s obligations to comply with the public sector equality duty in developing sentencing guidelines. I therefore urge the noble Lord to withdraw his amendment.

Amendment 18, also in the name of the noble Lord, Lord Marks, would require an independent review to be arranged by the Secretary of State into the changes made by Clause 1 of the Bill to sentencing guidelines about pre-sentence reports. I am mindful that a very similar amendment was tabled during the Bill’s consideration in the other place, and I do not want to repeat in full the debate there, but I hope it may be helpful if I briefly summarise the Government’s position.

While I recognise it is of course important to carefully ponder the Bill’s effects, I stress that the direct changes it makes are limited in nature. All this is about is ensuring that offenders do not receive preferential treatment regarding pre-sentence reports based on their personal characteristics. This gets to the heart of ensuring equality before the law, which is a principle which does not need to be reviewed.

To be clear, nothing in the Bill will prevent judges from requesting pre-sentence reports in cases where they ordinarily would, including in appropriate cases involving domestic abuse, young people or pregnant women.

While I therefore urge the noble Lord, Lord Marks, to withdraw this amendment, I hope that I can reassure him that there will be ample opportunity in this House to discuss matters with regard to the Sentencing Council in future, once the Lord Chancellor’s review into the wider role and powers of the Sentencing Council is complete.

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

My Lords, I am content to withdraw the amendment at this stage and will consider further developments before Report.

Amendment 15 withdrawn.

Amendments 16 and 17 not moved.

Clause 1 agreed.

Amendment 18 not moved.

Clause 2 agreed.

Bill reported without amendment.

Committee adjourned at 6.27 pm.