Sentencing Council Guidelines

Lord Keen of Elie Excerpts

Thursday 3rd April 2025 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, two days ago, magistrates and judges across England and Wales were, in effect, blindsided. At midday, they were informed that sentencing guidelines that they thought had come into force had in fact been suspended. The courts would have been sentencing offenders under guidelines that the Lord Chancellor herself now admits are fundamentally flawed. These are guidelines which, she has stated, would inflict a “two-tier” system of justice, undermining fairness and consistency in our courts.

In addition, buried in the very email sent to judges and magistrates, the Sentencing Council somewhat audaciously declared that

“we remain of the view that the guidelines are necessary and appropriate”.

While the Lord Chancellor advised in the other place on Tuesday:

“I believe that we must reverse them”.—[Official Report, Commons, 1/4/25; col. 183.]


So the Lord Chancellor says one thing and the Sentencing Council continues to say another.

This situation was entirely preventable, had the Lord Chancellor put party politics aside weeks ago and backed, rather than blocked, the Bill that my right honourable friend Robert Jenrick introduced in the other place. This Bill would have restored accountability and given the Lord Chancellor the power to govern justice policy. We may welcome the belated introduction of the Lord Chancellor’s Sentencing Council Bill, although I express regret that it had to come to this. However, we should be clear that the proposed Bill does not address the core of the problem, which concerns the status and accountability of the Sentencing Council.

There have already been concerns about other aspects of the Sentencing Council guidelines. Public reference has been made to the guidelines on immigration offences, although I understand that they are debated and indeed disputed. Further concerns have been expressed about guidelines on the provision of bail, where there is particular reference to the priority of ethnic minorities and transgender offenders. That also is a potentially discriminating practice that should not be maintained in our criminal justice system.

What is now required is a calm and considered review of the entire situation, rather than just a knee-jerk reaction Bill that addresses a symptom rather than a cause. I therefore invite the Minister, on behalf of the Government, to commit to a comprehensive review of all Sentencing Council and Ministry of Justice guidance on sentencing policy and bail policy, which should properly rest with the Government in the form of the Ministry of Justice and not with a wholly unaccountable Sentencing Council—however high a regard we have for those who sit in that council.

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

My Lords, the Lord Chancellor maintains that this Statement raises issues of principle, that it is about policy being for Parliament and not for judges, and that the Sentencing Council has breached the principle of equality before the law. We hear complaints from the Conservatives in particular—the noble and learned Lord, Lord Keen, is no exception to this, and it is unsurprising that I take a different view from him—of judicial overreach and of a two-tier justice system. However, all in this House are committed to equality before the law.

The background to the new proposed guidelines is the wealth of evidence, almost entirely undisputed, that ethnic minority defendants are more likely to be sent to prison than white defendants. Yesterday I mentioned the Lammy review, but there is so much more. This inequality of outcomes must be addressed; it is the very opposite of equality before the law.

Pre-sentence reports are a vital tool that enable judges to take into account the circumstances of an offender as well as the nature of the offence for which he is before the courts. The Lord Chancellor appears to accept that. The only other significant assistance a sentencing judge receives on an offender’s background and circumstances is the speech in mitigation from defence counsel. Although speeches in mitigation are powerful tools, they are made by defence counsel on the instructions of the defendant, so they are neither independently prepared nor impartial. They also cannot generally be independently verified, as pre-sentence reports can.

So we need these reports, and they have long been intended to be the norm not an optional add-on, yet resources for these reports have, in effect, been rationed. The Probation Service was hopelessly mishandled by the last Government, and one result is that there is not enough money to fund the number of pre-sentence reports we need. The noble Lord, Lord Timpson, yesterday gave the figures: the number of pre-sentence reports is down by 44% between 2013 and 2023.

The letter from the chairman of the Sentencing Council to the Lord Chancellor on 10 March explained the very thorough process that had led to these new guidelines, in the context of the statutory duty imposed by Parliament for the Sentencing Council to give guidelines to judges on sentencing. Part of the reason behind establishing the Sentencing Council was precisely to encourage consistency in sentencing—that is, equal treatment before the law—yet now we have the Government resorting to hastily drawn and unhelpful emergency legislation that tries to address a complex issue in simplistic terms. The operative section would provide that

“sentencing guidelines about pre-sentence reports may not include provision framed by reference to different personal characteristics of an offender”.

A subsection goes on to say that the “personal characteristics” may include—not must include—

“in particular … race … religion or belief … cultural background”.

The cohorts identified by the Sentencing Council as normally calling for a PSR include being a young adult, female, pregnant, or postnatal. Are those not personal circumstances and are they not relevant?

The solution to this is not emergency legislation. The emergency has now passed because the Sentencing Council has paused introduction of the guidelines. This emergency Bill has not yet had a Second Reading, and I therefore invite the Government to withdraw it now and end this unnecessary row. It is unseemly and widely regarded as such by the public. I suggest that the solution lies in rational and moderate discussion between the Sentencing Council, the Lady Chief Justice and the Government, to which Ministers in this House from the Ministry of Justice would have an important contribution to make.

The first aim would be to reach a solution that ensures that pre-sentence reports are properly funded so that they become the norm once again in all cases where a substantial prison sentence is not inevitable. The second would be that we recognise these reports play an important part in addressing and reducing the inequality of outcomes for ethnic minority defendants—this must be a major priority of the Government. The third would be that we all respect and ultimately achieve genuine equality before the law.