Sentencing Bill

Baroness Chakrabarti Excerpts

Committee stage
Wednesday 26th November 2025 Lords Chamber

[Lord Foster of Bath (LD)]

My Lords, I will briefly challenge some of what has been said. The noble Lord, Lord Hogan-Howe, rather implied that it was his belief that the Bill intends to remove all short sentences. From the Minister’s opening remarks and those of others, that is clearly not the case. There is, however, very good reason for reducing the number.

The Minister pointed out that there is a significant reduction in the level of reoffending. He has not given the figures, so I will share them with the Committee, as a result of the work of your Lordships’ Justice and Home Affairs Committee, which I chair, in a report that was done during the chairmanship of my noble friend Lady Hamwee. It showed the figures then—they have been replicated by more recent research—that, of offenders who are put in prison for short sentences and are released, 60% reoffend, whereas the average reoffending rate for those on custodial sentences is only 24%. As that report said, and as we will discuss in future amendments, there are very good ways in which we can improve non-custodial sentences to reduce the rate of reoffending even more.

I am going to disagree during our deliberations over the three sessions that we will have on the Bill—maybe more—with a lot of what the noble and learned Lord, Lord Keen, says, but I entirely agree with him, and it has been reflected by the noble Lord, Lord Hogan-Howe, and my noble friend, that none of these measures we are talking about will succeed unless we have the resources to do the job. Again, I say to the noble Lord, Lord Hogan-Howe, and others that there are amendments coming later where we can address the need for more probation officers and more people in our prisons. There is not currently, as far as I am aware, an amendment on police numbers, but there would be time to put one down.

The only other thing I want to say is how much I agree with the noble Viscount, Lord Hailsham, about getting rid of the list argument, which has also been picked up. I hope the Government will listen to his proposal about finding language that can be used about those people we know we would not want to put on short sentences, but not necessarily have the sentence inflation that has, sadly, caused a problem for us and is one reason we have so many prisoners in our prisons today.

[Baroness Chakrabarti (Lab)]

My Lords, I agree with much of what the noble Lord, Lord Foster of Bath, said, save that I think that the Bill already deals with the problem identified by the noble Lord, Lord Hogan- Howe. It is important to look at the text of the Bill: this is a “presumption” against short sentences; it is not a bar to them. Of course, there is a philosophy behind the presumption: the authors of the Bill and the Government have taken the view, which is not a revolutionary view in relation to the evidence that has been collected over many years, that, generally, short sentences are not a great idea. They do not lead to rehabilitation; they do not help with reoffending.

If you disagree with that and think that a short, sharp shock is a jolly good thing, you are obviously going to disagree with the Bill and these provisions. Having lists of various offences is a good wheeze, but it is not consistent with the philosophy of the Bill, which is that, in general, short sentences do not work—they do not keep the public safe because they do not rehabilitate anyone and, in fact, some people go to the university of crime for a short course of less than 12 months and come out with drug problems, relationship breakdown and other issues that they did not have before. But this is only a presumption; it is not a bar. To respond to the noble Viscount, Lord Hailsham, with whom I so often agree, I do not think that anything else is required as an alternative to the list approach of exceptions, because there is the residual discretion provided in the Bill for exceptional circumstances.

[Viscount Hailsham (Con)]

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

[Baroness Chakrabarti (Lab)]

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

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

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I hesitate to intervene on this matter, but I wonder what thought has been given by the Ministry of Justice to simplification. The Sentencing Code is now a very lengthy document. The way in which the title of the clause has been put is very sensible: it says that there is a presumption for a suspended sentence. However, one goes on to read the entirety of this text, with the words “the court must … unless”, and then there is a whole series of exceptions to that order. Why do we have to have complexity?

There are two strong reasons against it. First, there will not be parliamentary time to alter this if we get it wrong. Secondly, it is much better to leave this to the guidance of the Sentencing Council. If the Bill could say “the Sentencing Council will provide guidelines to bring about that there should be a presumption against short sentences”, would that not achieve what we want without language? I heavily criticise the parliamentary draftsmen for this unnecessary complexity. Can we go not go back to the Victorian age and do things simply? I know these words are likely to fall on deaf ears, but it would be so much better if we had simple sentencing legislation and left it to the Sentencing Council, which can adjust it as we see whether it works, because one thing experience shows is that we try one type of sentence and, a few years later, we want to tinker with it.

Separation Centres: Terrorist Offenders

Baroness Chakrabarti Excerpts

Tuesday 25th November 2025 Lords Chamber

[Lord Timpson (Lab)]

Separation centres protect the public from the most serious offenders. A small number of prisoners are held in these centres. The regime is purposeful activity, limited association and rehabilitation; the noble Lord will know that rehabilitation is really important to me. Having met the staff who work in separation centres, it is very clear that they are not all classically trained prison officers. A number are psychiatrists, psychologists, experts in security and so on. There is a team effort to make sure we run good regimes that have a real focus on rehabilitation. I look forward to getting into more of the detail on Jonathan Hall’s report when it and its recommendations are published because it will be very helpful to us as we look to the future of how we run these very specialist areas of the justice system.

[Baroness Chakrabarti (Lab)]

Does my noble friend agree that there is no inconsistency between having adequate separation of terrorism offenders and complying with our most basic and fundamental human rights obligations? In the light of the question from the noble Lord, Lord Marks, and, crucially, the decision of Mr Justice Sheldon last week, all we need to do is to ensure that appropriate mental health provision is made for any offender, particularly those who are isolated for long periods in the day. I know my noble friend is an expert in these matters.

[Lord Timpson (Lab)]

I thank my noble friend. We are carefully considering the High Court ruling on the Abu case, including considering appealing the decision. Our decisions are based on risk, and the proportionality of our response to that risk is how we make our decisions. Someone’s mental health throughout the justice system is a very important factor in how we manage everyone’s risk, whether they are on the first night of their first time in prison or they have been in the system for a very long time.

I am proud of so many of my colleagues who spend so much of their time in our prisons, and of our probation staff, who go out of their way to support people with their mental health requirements. The support we give our NHS and health providers in our prisons is clearly important too. We need to enable them to have the right space and time to work with people who are often very vulnerable.

Prisoner Releases in Error

Baroness Chakrabarti Excerpts

Thursday 13th November 2025 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister, but on this occasion also to the noble Lord, Lord Marks of Henley-on-Thames, for the bipartisan nature of his question focusing on this lack of digitisation, which I find completely flabbergasting in the context of such a massive prison estate when we live in such a digital world. This is not just about record-keeping; it is about sentence calculation as well in the context of an incredibly complex statute book. I am sometimes sceptical about artificial intelligence, but on this occasion I think it is an obvious fit for something that is essentially a complex mathematical equation that could be greatly assisted by AI. Can the Minister assure the House that that aspect of his answer will be prioritised, that the contract for the development of this technology will be firmly gripped in the context of procurement and that the sovereign capacity will be beefed up?

--- Later in debate ---

[Lord Carter of Haslemere (CB)]

My Lords, as has been said, prisoners have been released in error for decades. I know because I used to advise on sentence calculation in the 1990s in the Home Office legal advisers branch and I was the Prison Service legal adviser. It was difficult then; it is now fiendishly difficult because of all the changes to the statute book that have happened since then, as the noble Baroness, Lady Chakrabarti, knows well, because she was with me at the Home Office.

[Baroness Chakrabarti (Lab)]

The noble Lord was my boss.

[Lord Carter of Haslemere (CB)]

I was indeed. The statute book is a total mess as far as trying to calculate when a release date applies for a particular prisoner. Prisoners are all in a different position. Some have additional days; some have served a different remand time. All these factors need to be taken into account. As the noble Lord, Lord Marks, and the noble Baroness, Lady Chakrabarti, said, a digital answer has to be the way forward. As the noble Baroness said, it will obviously work here because you can punch in the details of the sentence to work out exactly when the release date is. It will have to be updated, of course, as additional days are added to the sentence and so on. We must go to a digital solution, but how long will it take for that to be up and running? There needs to be a procurement process. These things take ages, and we do not have ages. We have identified a crisis taking place. Is there any estimate of when this will be up and running and functioning to stop these releases?

Sentencing Bill

Baroness Chakrabarti Excerpts

2nd reading
Wednesday 12th November 2025 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I must add to the tributes to that great, brave and humane soul, Baroness Newlove.

It is, as we have heard, over 30 years since two political pugilists faced off from opposite Dispatch Boxes in the other place and triggered a law and order arms race from which our criminal justice system and the society it is supposed to serve have yet to recover. For decades, this excited expectations that Governments could legislate their way to headlines and re-election by diminished due process and tougher sentencing. They purported to do this even when imposing economic austerity, in the form of cuts to living standards and the justice system in particular, as well as youth, mental health and addiction services. Today, we reap the bitter harvest in both the human and the financial costs of a justice and penal system that is on its knees, in which few members of the public have faith.

By contrast, and with no disrespect to the elected Chamber, my noble friend Lord Timpson is a perfect example of the finest Government Ministers sitting in your Lordships’ House, bringing a wealth of experience, expertise and vocation for genuine reform. Not, perhaps, since the fictional progressive prison warden Henry Brubaker, played by the late Robert Redford in the 1980 Hollywood film, went inside disguised as a convict, has one man attempted such a brave reforming challenge. Of course, my noble friend comes disguised not as an inmate but as a politician. None the less, I pay tribute to him, and indeed to the much respected Conservative Lord Chancellor, David Gauke, whose sentencing review has inspired so much of the Bill before us. In particular, I commend a focus on preventing and reducing crime and diverting people away from prison so far as possible. Such aims are nothing short of a sea change from decades of crime and sentencing legislation drafted, if not quite on the back of a cigarette packet, on the back of rainforests of press releases full of punitive talk and sentence inflation.

Talk is cheap and legislation not much more expensive. The exorbitant cost comes later, in failed sentences and overstuffed prisons where rehabilitation programmes are all but impossible. The continuing cost is of reoffending and the revolving door—and I do not mean the one outside your Lordships’ House. The Bill must, of course, come with sufficient funds to implement it—adequate funds for our crumbling courts and demoralised probation, third sector and prison services—otherwise, this once-in-a-generation possibility of reversing the vicious cycle will be set up to fail.

I wholeheartedly welcome the presumption against short sentences, and the discretion to suspend short custodial sentences in the light of decades of data on reoffending. How hollow were those slogans of yesteryear about a “short, sharp shock” and how “prison works”? However, it is vital that suspended sentences translate into less custody, not fewer community orders, as we heard from the noble Baroness. Investment, training, monitoring and constant evaluation in every part of the system will be key.

By contrast, the new consent process for the Sentencing Council smacks a little more of the press release than sound policy. The will of the people on matters of sentencing is properly expressed by Parliament’s role in scrutinising and enacting sentencing legislation. The Sentencing Council exists to help the independent judiciary achieve consistency within the realm of its discretion. The Lord Chancellor of the day is, in practice, the initiator of sentencing legislation; they need not and should not be co-signing off on the Sentencing Council’s business plan and guidance documents. It is an encroachment on the independent judiciary, worthy of some of the political judge-bashing of the past. If the new process is not to be dropped, at the very least perhaps the Justice Committee rather than the Lord Chancellor should co-sign with the Lady Chief Justice. In any event, that committee is more reflective of Parliament than a senior member of the Executive is.

In the context of standard custodial sentences, the new progression model will need careful consideration. I urge my noble friends in government carefully to read the concerns of both Justice and the Howard League for Penal Reform. I know that many noble Lords are appreciative of their work in general and providing detailed written briefings on this Bill in particular. Only adequate, purposeful activity in prison can ensure progression rather than regression. There must be clear guidance on how the model should be implemented; the prison adjudication system must be reviewed as to fairness and potential discrimination, not least against disabled and otherwise vulnerable prisoners. The increase in the possibility of added days for bad behaviour must be carefully monitored and reviewed. There is a risk of some prisoners not being released until the very end of their sentence, with no subsequent probation requirements in the community.

Greater public faith and government investment in community orders is at the heart of the Bill. Care must be taken over the fairness, proportionality and unintended consequences of intensive supervision, restriction zones and electronic tagging. Offenders must be supported as well as supervised—and not set up to fail.

Clause 35 is of serious concern, with its powers to publish the names and photographs of those serving orders in the community. I am reminded of an informal meeting I had as director of Liberty with a Home Office political adviser around 20 years ago. During the encounter, the adviser’s phone rang; when they realised who the caller was, they turned very pale and left the table for a few minutes. On their return, they asked me what I thought of an idea to force those on community orders to wear striped uniforms while performing unpaid manual work in the community. “What do you think I’ll say?”, I replied. “What do you really think in terms of safety, decency, rehabilitation and public order?” The adviser nodded silently but looked very anxious. The call had come from the editor of a national newspaper, demanding the policy as a story for the next day. As journalism is currently under fire, I shall withhold the name of the editor and paper concerned. I believe that the pillory was abolished in 1837, and the stocks fell out of use in around the 1870s, so let us not revive them in time for the 2030s.

Finally, I welcome the Bill’s amendments to the Bail Act 1976; in particular, adding to courts’ considerations a defendant’s pregnancy, primary care giving or situation as a victim of domestic abuse. I urge the department to go further and build on reforms in the Mental Health Bill to abolish remand in custody of people, including children, for their own welfare or protection, even for non-custodial offences. This is surely one of the most obvious symbols and examples of our criminal justice system being used as a dumping ground for social problems and vulnerable people who would be far better cared for and protected elsewhere, and at far less financial and human cost.

Overall, I congratulate the Government on creating such an opportunity for enlightened and effective reform. Because it is in his nature, I know that my noble friend Lord Timpson will seek to collaborate across the House on ensuring that this opportunity is taken to the best of our shared ability—including, I hope, on IPPs. I wish him well in his task and look forward to playing my own small part.

Prison Services: Insourcing

Baroness Chakrabarti Excerpts

Wednesday 5th November 2025 Lords Chamber

[Lord Timpson (Lab)]

The noble Lord is right that drugs are a huge problem: 49% of prisoners who arrive in prison declare to us that they are addicted to drugs and alcohol. We then put them in prison with many serious organised criminals, who make their livelihood from supplying drugs. That is where we have the problem. We need more drug-free living wings. They are important and they help people turn their lives around. I also agree that we need to trust our governors and our leaders in prisons to make the right decisions for their prisoners.

[Baroness Chakrabarti (Lab)]

My Lords, the Government are clearly very fortunate to have my noble friend the Minister in this vital role, with his commercial and prison-reform expertise. Following the intervention made by the noble and learned Lord, Lord Woolf, when the Minister is considering the 2031 review, will he think not just about the commercial, value-for-money aspects but about the constitutional aspects of privatised incarceration and coercion as well?

[Lord Timpson (Lab)]

I thank my noble friend for the question. What is really important is that we make sure that we hold all operators to account between now and 2031. This applies to us, running 115 prison sites, and to the private sector. Hopefully there will be announcements soon on the direction we will be going in.

Adult Prison Estate: Support for Young People

Baroness Chakrabarti Excerpts

Monday 3rd November 2025 Lords Chamber

[Lord Timpson (Lab)]

Let me take the example of the female prison population. Young adult women aged 18 to 25 make up 12% of the female prison population, but they account for just under 50% of all instances of self-harm. For me, that is a very distressing figure. What was clear from going round women’s prisons, as I have done recently, is that I saw a lot of young women there who I believe are very ill, and it is about how we support them. It may be that prison is the right place for them, but it may be that we need to support them in a secure hospital environment that will help them manage their issues as well.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to my noble friend for all his answers so far. Is he aware—I am embarrassed that I was not—that people can still be remanded in custody, even pending trial for a non-custodial offence, for their own protection? This has a disproportionate effect on children and women. Will the Government consider abolishing that provision?

[Lord Timpson (Lab)]

I thank my noble friend for the question. I am not aware of the detailed numbers of young people in that position, but I do know that the number of children in prison has fallen considerably over the last few years. There are 461 children in prison today: just a few years ago, we had over 1,000. But we need to make sure that we always have a place in prison for those people who need to be there and that, where we can divert young people away from prison, we do so.

“Hillsborough Law”

Baroness Chakrabarti Excerpts

Thursday 24th July 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I agree with the way that the noble Lord has framed his question. There was an establishment cover-up, which must never happen again. The Prime Minister has made a personal commitment to the affected families to work with them constructively to come up with an appropriate law. Regarding the duty of candour, the Government are clear that what happened following the Hillsborough disaster must never happen again. Under the Hillsborough law, public officials will be bound by a duty of candour with criminal and professional consequences. We are committed to achieving a true cultural change. The Bill cannot change culture on its own, but it can and should act as a catalyst, and we remain committed to launching a programme to encourage cultural change alongside the Bill.

[Baroness Chakrabarti (Lab)]

I am grateful to my noble friend, as always, for repeating the Government’s commitment to introduce the Hillsborough law, but I am afraid that the families and their representatives feel a little less positive about the engagement that they have had so far. Some worry that they have been briefed against to the newspapers and, generally speaking, they worry about the dilution that the noble Lord, Lord Storey, has warned against.

[Lord Ponsonby of Shulbrede (Lab)]

I am sorry to hear that from my noble friend. I am aware of very recent interaction with the families in Liverpool. My understanding is that those talks have been going positively, and it is very much hoped that we will be able to reach some form of agreement in the coming weeks and months.

Trial by Jury: Proposed Restrictions

Baroness Chakrabarti Excerpts

Monday 14th July 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for those questions. He is absolutely right that we are not short of jurors. We are also not short of magistrates and there is no shortage of applicants to become magistrates. Sir Brian’s suite of recommendations included increasing the role of the magistrates’ court, as well as introducing the new bench division within the Crown Court, to which the noble Lord alluded. He said that Sir Brian said there will be a 20% saving in time with the new bench division. That is his estimate. I have to say, I think that is very conservative. We already know that for similar cases magistrates’ courts are two or three times quicker than Crown Courts, so I think it is conservative to estimate that we will see only a 20% saving in time with the new bench division courts.

The noble Lord made the point about delays for victims. Of course, that underpins the concern and the reason we are introducing these systemic changes in the first place. It is my understanding that there are about 100 cases in London booked for 2029. I think they may be mainly sex-related cases; I am not sure. That is unacceptable. It is unacceptable for the victims and the defendants, and it is a systemic problem we are trying to address.

[Baroness Chakrabarti (Lab)]

My Lords, I pay tribute to my noble friend the Minister for his long public service as a lay magistrate, as I do to Sir Brian for his long public service as a judge and, post-judiciary, on various inquiries for Governments of both persuasions. I know the Government are considering how to respond to this review and the Gauke review. May I ask my noble friend to take into account that we cannot have one class or one group of people permanently sitting in judgment over another? The lay magistracy, for all its commitment to public service, is not as representative as juries and that needs to be taken on board.

[Lord Ponsonby of Shulbrede (Lab)]

My noble friend makes a fair point. I would say that magistrates are more diverse than judges. Judges already sit in certain types of cases as single judges deciding people’s guilt; they do it in youth courts and family courts, and there are other examples within the civil jurisdiction as well. I think it is also fair to say that in the big conurbations—London and the big cities—there is greater diversity in the magistrate base. I take the point my noble friend makes, but I think that magistrates are respected and we are starting from a strong base if we want to build on the work they are doing.

European Convention on Human Rights: Protocol 12

Baroness Chakrabarti Excerpts

Monday 2nd June 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

So I will write to the noble Lord about that. Nevertheless, my point stands: many other states have considered this and have not at present decided to sign the protocol. It is worth pointing out that none of the larger states within the European Union or the Council of Europe have signed it, either.

[Baroness Chakrabarti (Lab)]

My Lords, the Government have a duty not just to protect people’s rights and freedoms but to promote public understanding of those rights and freedoms. So can my noble friend the Minister explain why this further innovation of a free-standing right against discrimination in Protocol 12—as opposed to a right against discrimination in the context of other convention rights, such as Article 14, which we are signed up to—would not benefit people, in the light of his comments that the Equality Act already does the trick?

[Lord Ponsonby of Shulbrede (Lab)]

The fact of the matter is that we are seeing the law develop in these areas. We have had the Supreme Court judgment. I and the Government believe that the Equality Act is working well, and there will be development in law in this matter going forward. It is also right that there is very little common law associated with Protocol 12 for those states that have signed up to it. So, as I said, the Government are keeping an eye on this matter, but at present they do not believe that it is right to sign up to Protocol 12.

Sentencing Guidelines (Pre-sentence Reports) Bill

Baroness Chakrabarti Excerpts

Committee stage
Monday 19th May 2025 Grand Committee

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.

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[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.