Sentencing Bill

(Limited Text - Ministerial Extracts only)

Committee stage
Monday 1st December 2025 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I thank the noble Lord, Lord Barber, for introducing the amendments in the name of the noble Lord, Lord Woodley. He will probably not be surprised to learn that His Majesty’s loyal Opposition cannot support Amendment 77. I note the noble Lord’s commitments, but it would simply be a foolish burden to impose more administrative obligations on the public sector. It cannot be right to bar the use of a private enterprise where appropriate; the emphasis must be on “appropriate”. That should be for the Probation Service, as the commissioning body, to determine, with the Ministry of Justice having oversight.

Of course, our justice system should not be privatised, but the single issue here is delivery. This does not mean there are not benefits to be gained from working together with the private sector, especially as the current system is hugely overburdened. We should be welcoming prudent collaboration with private companies that specialise in supplying such services to community sentences, but only where it is right to do so because they are the right people and they pass the test of competition. We should not be needlessly blocking off an avenue that helps ease this strain.

This amendment is not necessary. The Probation Service is currently in the process of regaining control of community sentences. Private community rehabilitation companies had their contracts terminated and their responsibilities transferred to the Probation Service by the last Conservative Government. Community sentence oversight and management is already in the hands of the public sector, while private and volunteer suppliers provide support services. That is how it should continue.

We are in a situation where the public sector has responsibility for running and delivering the community sentences and, at the same time, can make use of the efficiencies of the private sector for supply on the ground where appropriate. Banning public sector involvement is an attempt to fix a problem that does not exist. It would come at the cost of placing undue strain on the Probation Service. If the ministry determines that prison officers should fit tags—here, I move from one topic to the other—because it is operationally sensible, then that should be done. If it deems that it is not appropriate in one prison for one reason, it can divide it up, but let us leave it as it is.

We cannot support either of these amendments. We agree that there is merit in demarcating the Probation Service’s remit and ensuring that it remains a public service, but prisons are not in the state to be taking on board more responsibilities at this time. Rather than attempting to legislate powers into the public sector, we should allow services to be dynamic. We should allow the Probation Service and the Prison Service to make their own decisions on the most appropriate basis. They are the ones who must react to changing duties and capacities. Sometimes this will require contracting out to the private sector; sometimes it will not. Merely attempting to close off an option for ideological reasons will not help best delivery of the services we need.

[Lord in Waiting/Government Whip (Lord Lemos) (Lab)]

My Lords, I thank my noble friend Lord Woodley for tabling these amendments and my noble friend Lord Barber for introducing them in his absence, giving me the opportunity to clarify the Government’s position on the issues they have raised.

I appreciate that my noble friend’s Amendment 77 is founded on concerns that unpaid work will be privatised. To be completely clear, and for the avoidance of any doubt, I assure him that the privatisation of unpaid work is absolutely not being considered. The Government are clear that unpaid work must be robust and continue to pay back where it matters most: in our communities. The Government remain open to a full range of potential projects that help our communities. Were any of those to have any private sector involvement, it would be within the realms of the current requirement for the Probation Service to retain ultimate control and supervision. This requirement is unchanged and, as I say, we have no plans to change it.

For example, it is already possible for a private company to influence the type of projects offenders may complete through nominating suitable projects, such as graffiti removal in a local community. In these scenarios, the unpaid work would always be overseen by the Probation Service and the work undertaken would always serve a community purpose—I stress that point. We do not intend to privatise the delivery of unpaid work, but we should encourage joining up with local businesses and charities to determine how best to expand projects further and to deliver work that has the greatest community benefit. We believe that there is sufficient operational guidance already in place to support delivery in a way that benefits charitable, state or not-for-profit organisations and guards against exploiting any offenders for private profit.

Turning to Amendment 135, I will address the concerns that my noble friend raised. It is important to be clear that it is the responsibility of the electronic monitoring field and monitoring service provider, Serco, to perform the duty of installing and monitoring the output of electronic monitoring devices. I note the comment of the noble Lord, Lord Sandhurst, about the commitment to probation being seen as a public service. He also noted that this community rehabilitation company was brought back into the public sector by the last Government; of course, it was also the Conservative Government who put it in the private sector, where it failed, in the first place.

I recognise and deeply appreciate the vital role that the Prison and Probation Service performs. I stress that, as my noble friend Lord Timpson said, we see it as crucial to the success of these reforms. We want it to be able to focus on recovering from the challenges it faces and on becoming genuinely world-class.

The Ministry of Justice has recently launched a pilot to test the fitting of electronic monitoring devices before offenders leave the prison gates, instead of at a home visit. This goes to my noble friend Lord Barber’s third point. We are doing this so that we can begin monitoring them immediately, in the crucial period just after leaving custody. The approach is initially being tested in six prisons. I therefore reaffirm to my noble friend and the Committee that it absolutely remains the responsibilities of Serco to install tags at these pilot sites and of Probation Service staff to manage the prison leavers to whom they are applied. The pilot will be subject to proper evaluation so that we can take forward the operational learning and evidence it generates to inform future practice.

I hope that that reassures my noble friend that the changes we are making do not change the responsibilities for applying the tags. With those reassurances in mind, I hope that he will feel able to withdraw his amendment.

[Lord Barber of Ainsdale (Lab)]

I thank my noble friend the Minister for his response. On Amendment 77, I noticed that he placed proper emphasis on payback to our communities from the unpaid work we are discussing, but I would hope that proper consideration is also given to payback to prisoners who face this form of punishment during their terms.

This is comparable to other community work schemes in many ways, and in previous job creation programmes there have been strong emphases on the quality of training provided and the safeguards against displacement and substitution of paid jobs. Those are important considerations that need to be taken into account in considering the programmes we are discussing in respect of prisoners.

On Amendment 135, I note and am pleased to hear what the Minister says about Serco continuing to have that key responsibility. In the light of the response on both these amendments, I am prepared to withdraw Amendment 77 and not press Amendment 135.

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[Lord Keen of Elie (Con)]

My Lords, I must confess that as I read the provisions of this Bill, it triggered a childhood memory. The late Dr Dolittle curated a number of very strange and unusual animals, which included the pushmi-pullyu: a gazelle with two heads, which faced in opposite directions at the same time.

Why would I be prone to such a memory on reading the provisions of this Bill? Let me begin with some quotations from the Government. First,

“sentencing in individual cases is a matter for our independent judiciary”.—[Official Report, Commons, Crime and Policing Bill Committee, 3/4/25; col. 211.]

Secondly,

“it is at the discretion of the independent judiciary whether to impose a suspended sentence”.—[Official Report, 26/11/25; col. 1369.]

Thirdly,

“the decision on which requirements to include in an order is a matter for the judge sentencing the case”.—[Official Report, 26/11/25; col. 1378.]

Finally:

“It is right for the judiciary to retain discretion to consider this and make the sentencing decision”.—[Official Report, 26/11/25; col. 1344.]


Yet Clause 1, in opening the Bill, says that the judiciary must apply a presumption, other than in very narrowly prescribed circumstances, so that even if a judge wished to impose a custodial sentence of a certain length, they would be unable to do so if it did not fall under a specified exemption or exceptional circumstances.

How did the Minister endeavour to bring this together in the first day of Committee? He said that

“it is at the discretion of the independent judiciary whether to impose a suspended sentence”,—[Official Report, 26/11/25; col. 1369.]

following the “appropriate guidance” of the Sentencing Council. But this guidance is now to be in the control of the Government, by virtue of the Lord Chancellor’s veto, thereby potentially eliminating any sense of “independence”.

So I ask the Minister: in which direction is this two-headed Bill going to proceed? It cannot walk in two different and diametrically opposed directions at the same time. Is it towards the goal of judicial independence, or towards the goal of executive control? The noble and learned Lord, Lord Burnett of Maldon, concluded by saying that these provisions were wrong-headed. I think they are even worse: they are double-headed, and that has to be resolved.

[Lord Lemos (Lab)]

My Lords, I thank the noble Lord, Lord Jackson of Peterborough, and the noble and learned Lords, Lord Burnett of Maldon and Lord Thomas of Cwmgiedd, for tabling these amendments. I am very grateful for their continued and constructive engagement on the Bill.

Amendment 80, tabled by the noble Lord, Lord Jackson of Peterborough, proposes to abolish the Sentencing Council for England and Wales. The noble Lord’s prediction is correct: I put on record that we strongly believe that it is right to retain the council, in view of the continued importance of its work in developing sentencing guidelines. He does not look completely surprised.

Over time, the council has developed offence-specific guidelines covering hundreds of offences, alongside a series of overarching guidelines. These guidelines have helped bring greater consistency, transparency and public understanding to the sentencing process. We welcome that.

The council also holds an important constitutional position, as mentioned by the noble and learned Lord, Lord Thomas, within the firmament of our justice system. It bridges the interests and responsibilities of Parliament, the Executive and the judiciary on sentencing policy and practice, while protecting the important responsibility of judges and magistrates to make individual sentencing decisions—I think I am reflecting what the noble and learned Lord said. For these reasons, I am afraid we do not support the amendment from the noble Lord, Lord Jackson. I urge him to withdraw it.

I turn to the amendments tabled by the noble and learned Lords, Lord Burnett and Lord Thomas. They have indicated quite clearly their opposition to Clause 18 and propose an alternative approach to Clause 19. I am grateful for their careful consideration of this. Their concerns are shared by the noble Lord, Lord Marks. I know that they were experts in this field and their opinions therefore carry a great deal of weight with the Government. As the Minister made clear at Second Reading, in bringing forward these clauses we are aiming to maintain public confidence in the guidelines that the council produces, particularly in view of the sustained public scrutiny that the council has been under of late, which is partly reflected in these debates.

Events surrounding the imposition guideline, on which I do not propose to dwell but which obviously I need to reference, earlier this year highlighted an example of the issues that can arise where guidelines cover areas of policy that should properly be for Ministers and Parliament to determine. We are keen to avoid a similar scenario arising in future, and that is why Clauses 18 and 19 have been drafted to introduce approval measures that provide greater democratic and judicial oversight of the council’s work.

I recognise that noble Lords, including the noble Lord, Lord Marks, are keen for more information about the intention of Clause 18. Put briefly, this clause will allow the Lord Chancellor to have a greater say over the guidelines that the council intends to develop across the year, ensuring that any plans are properly reflective of wider priorities across government and Parliament and with the wider public. As no noble Lord has so far mentioned this, I should stress that in preparing this clause we have had regard to similar provision that exists for comparable bodies across the justice system, such as the Law Commission.

[Lord Thomas of Cwmgiedd (CB)]

Will the Minister explain why the Law Commission, which is a body that looks at law reform for the Government, is to be equated with the independent Sentencing Council, which constitutionally balances the three interests? It would be very helpful to have that explanation. A second explanation it would be helpful to have is: is it intended that the business plan sets out in detail what is going to be in the guidelines so that the Lord Chancellor can look through it to see whether there is likely to be the kind of short sentence or two that occurred in this guideline that is unacceptable? It would be very interesting to know the Government’s thinking on both these points.

[Lord Lemos (Lab)]

I take the point that the noble and learned Lord makes that the Law Commission is different. That is why I said that we have had regard to that. On the second question that the noble and learned Lord raises, perhaps I can come to that in just a moment.

Clause 19 provides that the council can issue definitive guidelines only if the Lord Chancellor and the Lady Chief Justice each individually approve them. The amendments from the noble and learned Lords propose instead that the council should be free to issue definitive guidance unless both the Lord Chancellor and the Lady Chief Justice indicate that they do not consent. While I appreciate the sentiment and the spirit of compromise behind these amendments—which the noble and learned Lords, Lord Burnett and Lord Thomas, also referred to— I am afraid that we are not convinced that they would be the best way of securing the public confidence in sentencing guidelines that we seek. This is because they run the risk of definitive guidelines being published and implemented for use by the courts, even if the Lord Chancellor or, indeed, the Lady Chief Justice had indicated their discontent with them. We consider the current drafting of Clause 19 to be a practical and effective means of achieving our policy objective because it provides that the consent of the Lord Chancellor and the Lady Chief Justice must first be obtained before a definitive guideline can be published and implemented.

I emphasise that, in developing our current drafting, we have sought to reflect the distinct roles and responsibilities that the noble and learned Lord, Lord Thomas, referred to between Parliament, the Executive and the judiciary, as well as the careful balance that has been established for sentencing policy and practice. In particular, we are clear that these approval measures do not interfere—I hope that this is obvious, but I will emphasise it anyway—with the judiciary’s responsibility for setting sentences in individual cases.

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[Lord Lemos (Lab)]

That is precisely why we want to engage in further discussion to try to take some of that forward.

[Lord Jackson of Peterborough (Con)]

I assume that the Minister is indicating that I should withdraw my amendment. This has been a fascinating, fluent and well-argued debate. Obviously, I have been beset by a surfeit of eminent jurists this evening; they certainly gave the lie to the saying that lawyers are the only people in whom ignorance of the law is not punished.

The interesting thing is that, although I agree with the noble and learned Lords on the Clause 18 and Clause 19 stand part notices, that is a logical corollary of the fact that I wish to see the abolition of the Sentencing Council and therefore do not find myself coming from the same position. So I am an example of a “push-me pull-me”: I find myself agreeing with their objective but vehemently disagreeing with their rationale and reasoning.

I will quickly say two things. I slightly take issue with the noble and learned Lord, Lord Thomas, because it was not just a slightly irrelevant mix-up at the beginning of the year; it was quite a constitutional tempest. It is very unusual for the Government to bring forward emergency legislation, in effect, very quickly as a result of the behaviour or conduct of an arm’s-length body. Serious constitutional ramifications arose from those decisions. Obviously, the Government solved that matter with cross-party support.

I totally agree with the very astute point made by my noble and learned friend Lord Keen of Elie. There is a dichotomy at the heart of this Bill around the interference or otherwise of the Government and the imperatives they are giving to the judiciary. That needs to be resolved by the time this Bill gets Royal Assent.

With all those caveats being ventilated, and bearing in mind, as I predicted, that the Minister was very unlikely to agree with me, I will seek to withdraw my amendment.

I should also say that I of course meant the Times leader of March 2025 and not 2010, for the benefit of the official record; that was an error on my part. With that being said, I beg leave to withdraw my amendment.

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[Baroness Porter of Fulwood (Con)]

My Lords, I welcome Amendment 148A. The Bill will shape the ecosystems of support that underpin and surround our entire justice system. A recurring theme through Second Reading and Committee so far has been the question of resourcing. While the focus of these discussions has been largely around the Probation Service itself, we cannot ignore the 1,700 community and voluntary organisations that work in this area, both inside and outside prisons.

We know that there are many aspects where community and voluntary organisations excel. There are some dimensions, the evidence shows, where they provide better than private companies or the public sector. They build social capital, enable trust and often have an understanding of vital contextual points related to specific communities or issues. I am sure any of us who have spent any substantial time volunteering and working closely with people in very vulnerable situations understand this dynamic.

In general, this sector in the UK is facing challenges on many fronts. The rise in national insurance, corporate giving stalling and increasing overheads across the board, combined with growing demand, are all contributing to what the National Council for Voluntary Organisations refers to as the year of the “big squeeze”. Clinks’ State of the Sector 2024 report makes for sobering reading, and that is the situation as things stand. If the vision that sits behind the Bill is to stand any chance of success, not only do we need to find a way to support and shore up the existing voluntary and community sector but we need to prioritise expanding its capacity and growing it.

That is more straightforward than it sounds. There is a remarkable level of agreement across organisations such as the Charities Aid Foundation, the Centre for Social Justice, Clinks and the National Council for Voluntary Organisations, to name a few, about the kinds of policies that are needed. A lot of these are to do with processes: simplifying, contracting, commissioning locally and more collaboratively, introducing contract indexation and protecting local specialist funding. Others are about finding ways of attracting more private and corporate donations into the sector; for example, making changes to gift aid and introducing matched funding. Others, as the Lords Justice and Home Affairs Committee report Better Prisons: Less Crime highlighted, are practical points about how HMPPS and individual prisons can co-ordinate better with the third sector.

This amendment by itself is not an answer, but it is a prerequisite for bringing the level of transparency and accountability that is needed into this system. This provides a powerful opportunity, if used correctly. We need to understand in more detail the plan for addressing the impact of the Bill by requiring a formal report on its impact and on the capacity of the voluntary and community sector to meet any increased demand. This amendment will build accountability into the system.

If we fail to monitor the effects of this legislation on the very organisations that underpin rehabilitation and community safety, we risk creating new pressures in the system. By amending the Bill to provide for this assessment, the Government have the opportunity to send a clear signal here, demonstrating that they believe that policy should be informed by data and that the community and voluntary sector is a valued partner. This amendment would strengthen oversight, support the sector and ensure that the promises of the Bill are matched by the capacity of the community to deliver them.

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

My Lords, I thank the noble Lord and the noble and learned Lord for the opportunity to discuss these important issues. I appreciate that these amendments seek to improve transparency and public understanding of the criminal justice system, and this Government agree wholeheartedly on the importance of open justice. However, we do not consider that these amendments are necessary to achieve that aim.

I turn first to Amendment 84. I reassure noble Lords that the Government are taking action to increase the openness and transparency of the system. In certain cases of high public interest, sentencing remarks are already published online, and sentencing remarks can also be filmed by broadcasters, subject to the agreement of the judge. The sentencing of Thomas Cashman for the appalling murder of Olivia Pratt-Korbel was one such example. The Government have recently extended provision of free transcripts of sentencing remarks to victims of rape and other sexual offences whose cases are heard in the Crown Court, and it remains the case that bereaved families of victims of murder, manslaughter and fatal road offences can request judges’ sentencing remarks for free. We are also actively exploring opportunities offered by AI to reduce the costs of producing transcripts in future and to make transcripts across the system more accessible. But this amendment introducing this additional provision of court transcripts would place a significant financial burden on the courts and divert resources away from where they are needed most in the wider system.

The release of any court transcript requires judicial oversight to ensure accuracy and adherence to any reporting restrictions and to make sure that other public interest factors have been considered. This amendment would therefore have significant operational and resource implications for HMCTS and the judiciary. It would place extra demands on judicial capacity in the Crown Court and on HMCTS at a time when the system is under immense pressure, so while we agree entirely on the importance of transparency within the justice system, we cannot accept the amendment at this time. However, I reassure noble Lords that we will continue to consider this closely. In particular, I want to explore what opportunities AI presents to improve transcriptions and data. I am sure that noble Lords agree that the potential is there and that we need to find the best way to harness it. I will write to the noble Baroness, Lady Hamwee, on the point around data and accuracy.

I turn to Amendment 85. Again, we agree with the principle of improving transparency but not with the necessity of the amendment itself. This Government are committed to improving the collection and publication of data on foreign national offenders. The Ministry of Justice has already taken action to increase transparency on the data published. Notably, in July, for the first time the offender management statistics included a breakdown of foreign national offenders in prison by sex and offence group. We are also working closely with colleagues in the Home Office to establish earlier identification of foreign national offenders. Being able to verify the nationality of offenders ahead of sentencing will facilitate more timely removals and may also provide an opportunity for enhanced data collection. We will keep this under review as part of our ongoing work to strengthen the data collection and publication system that we inherited from the previous Government.

Implementation of these measures may require a new mechanism to verify the information provided, which must be cost effective and prevent placing additional pressure on operational staff. For this reason, we cannot accept a statutory duty to publish this information before the necessary infrastructure is in place to support it. Our measured approach will continue to support the return of more foreign national offenders while ensuring maximum transparency for the public.

I am grateful to the noble Lord and the noble and learned Lord for Amendment 148A concerning measuring the impact of the Bill on the voluntary and community sectors. I also thank the noble Baroness, Lady Porter of Fulwood, who has championed this subject during the Bill’s passage. She made a thoughtful and impassioned contribution at Second Reading and in today’s debate. The voluntary and community sector plays a vital role in developing and delivering services to people in our care. The sector supports HMPPS and the MoJ by bridging gaps and providing continuity that reduces reoffending and drives rehabilitation through targeted specialist support. Many of the services we provide would not be possible without the vital contribution of the voluntary sector, including charities such as Women in Prison, the St Giles Trust, PACT and many others. The Independent Sentencing Review made recommendations for where the third sector can be utilised to support the Probation Service and offenders on community sentences or on licence.

We already work closely with third-sector organisations to deliver better outcomes in the criminal justice system. For example, we work in partnership with the charity Clinks through the HMPPS and MoJ infrastructure grant to engage a network of around 1,500 organisations. In collaboration with Clinks, we have convened a series of roundtables with voluntary and community sector representatives and policy colleagues to explore the review’s recommendations and how the sector can make the greatest contribution to probation capacity.

I have carefully considered Amendment 148A. However, it will not be possible to fully understand the impact within 12 months, nor based just on data from the first six months of the Act being in force. Implementation of the Bill’s provisions will be phased over time and closely linked to the outcomes of the Leveson review and its implementation. In addition, the sector’s experience will be influenced by the introduction of new commissioned rehabilitative services contracts. Measuring the impact within such a short timeframe amid these overlapping and confounding factors would be highly complex. But again, I want to explore the opportunities that AI presents to collect and use better data in future. I can assure noble Lords that we will continue to work closely with the sector to ensure that it is considered and utilised in the implementation of this Bill.

[Lord Keen of Elie (Con)]

My Lords, I am grateful to all noble Lords who have spoken on this group. Their contributions have underscored the wide recognition across this Committee that transparency, accountability and evidence must underpin any credible approach to sentencing reform. These amendments do not seek to frustrate the Bill in any way; they seek to ensure that its objectives can be properly understood, monitored and delivered. Regarding Amendment 84, we have heard throughout this debate the importance of public confidence in the criminal justice system, and confidence cannot exist without visibility.

On Amendment 85, I once again make the simple point that you cannot manage what you do not measure. With respect to Amendment 148A, I too acknowledge the contribution made by the noble Baroness, Lady Porter; her thoughtful and insightful contribution reflected her long-standing experience and interest in this issue. At this time, I withdraw the amendment, but I give notice to the Minister that we will return to this issue at a later point in the process of the Bill.