Sentencing Bill

Lord Lemos Excerpts

Wednesday 3rd December 2025 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I am grateful to the noble and learned Lord, Lord Thomas of Cwmgiedd, for bringing this issue to the Committee. Effective probation practice depends fundamentally on local knowledge, local accountability and integration with wider services, including housing, health, substance misuse, skills and so on. In Wales, these services, in contrast to probation, are largely devolved. It is therefore entirely reasonable to ask whether the current arrangement or settlement best serves the people of Wales and whether the structures we have today genuinely allow probation to work in partnership effectively with the devolved landscape.

The noble and learned Lord has raised an important point. We on these Benches do not commit ourselves today to the specific mechanism set out in the amendment. Devolution of an important plank of the criminal justice function requires proper consideration, planning and, above all, collaboration—I emphasise that word in the light of what the noble and learned Lord has said—between the United Kingdom Government and Welsh Ministers. We agree that that conversation cannot be avoided. It must be approached constructively with regard to the Welsh perspective.

Probation in Wales faces real pressures and deserves a stable and effective framework within which to operate. If the Minister believes that the current reserved model remains the right one, the Committee would expect him to set out clearly how it delivers coherence, integration and accountability, and how it is effective not in theory but in practice. We are grateful to the noble and learned Lord for initiating this debate, and we look forward to the Government’s response, probably not for just the one time.

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

I thank the noble and learned Lord, Lord Thomas, for his amendment and his thoughtful engagement on this issue and others. I know he has met my noble friend the Minister outside the Chamber to discuss these things.

The Government committed to undertake a strategic review of probation in their manifesto, and it is still our plan to review the governance of the Probation Service, looking at partnerships across England and Wales. The noble and learned Lord, Lord Thomas, mentioned the Manchester model. I hesitate to agree with the suggestion that it is being imposed on Wales, but I have to say that I am rather a fan of the Manchester model. In fact, I regard myself as the progenitor of it—or one of them—when I was at HMPPS as its lead non-executive director. That is part of what is on offer, as it were.

It is important that the recommendations in this Bill are first implemented and that we bring stability to the Probation Service in England and Wales as it currently is before undertaking any structural review. The Government believe that this would not be the right time to consider factoring structural changes into the many changes to probation that will arise as a result of this legislation. I understand that the doctrine of unripe time is often a fairly feeble excuse for inaction, but I am sure that everyone in the Committee recognises that—if I can put it like this—the capacity for change in the Probation Service, with this Bill and the current situation, is pretty much maxed out.

The amendment proposes devolving the Probation Service, but not the equivalent in relation to sentencing or prisons. Devolving parts of the criminal justice system in this way would create a divergence between the management of offenders and the wider criminal justice, sentencing and prison framework across England and Wales. We know that poor handovers, weak communication or gaps in support during the transition from custody to the community are among the greatest barriers to successful resettlement, so we are concerned that some of the changes that might arise as a result of this would create friction in the way that I have suggested. Therefore, any framework in which prisons and probation are separately owned, funded or designed carries a real risk that the two halves of the process might fail to connect, particularly at a time of strain. When that happens, people leaving prison can all too easily fall through the gaps.

That is the heart of the Government’s view at the moment—that this is not a good time to impose structural change on the Probation Service. We want to be sure that we do not create the sort of risks and frictions that I discussed. We will continue to work closely with the Welsh Government to support the local delivery of services by devolved and reserved partners in Wales. I hope that I have given the noble and learned Lord some reassurance, at least sufficient for him to withdraw his amendment.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I completely agree with the noble Lord who has responded. It is obviously sensible to devolve prisons and probation together—that is what we recommended—but the political reality of the way in which the Governments in Cardiff and London relate, particularly when they are of the same party, made me think at this stage not to put down prisons and probation. I shall rethink that for the next time.

I wish that people here would realise that there will be no effective change to the Probation Service until we can take some of the money out of prisons and put it into probation. I am sure that most people who think about it realise that the Government do not have any money and realise it has got to come from somewhere, and that imprisoning people for sensible and shorter times is a much better policy. I would like to see that done in Wales, and I am convinced it could be done, so I will think about the suggestion from the Minister that we should put down both on the next occasion.

I said that the Manchester model was being imposed, but it is really a Hobson’s choice. That is what I mean about it being imposed—“You want something, so we will give you a little bit to keep you quiet”. But it is not the right model, because Manchester is not a country; it is a city in England where people here make decisions on policy. Wales is a different country, a proud and ancient nation. That is the difference, and that is why the Manchester model is good for Manchester but not good for Wales.

In the light of all that has been said, I hope that I may return to this issue, maybe in a slightly different and wider form of amendment, as suggested. I beg leave to withdraw the amendment.

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[Lord Keen of Elie (Con)]

My Lords, these amendments may appear useful in a time where sentencing laws are revised with increasing frequency, as illustrated by this Bill. A call for transparency and data is also generally welcome. Both amendments reflect a desire to ensure that justice keeps pace with changes in law and society. I am sure that anyone can support that general intention. We would invite the Government to address constructively the concerns that lie behind these amendments.

However, it appears that there may be very real practical issues and difficulties about any such amendment to the Bill. To take one simple example, the Bill, when it becomes law in its present form, will determine that someone who is sentenced to 12 months or less should have a suspended sentence. At the point when the Bill becomes law, is everyone then serving a custodial sentence of 12 months or less going to seek review on the grounds that the sentence should now be suspended? It seems to me that there are an awful lot of practical difficulties around that possibility.

Then, of course, we are going to have people reviewing the Sentencing Council recommendations from time to time who will say, “Wait a minute: they used to recommend three years for what I did, but they are now recommending two. Could I please have a review?” While the amendments are well intentioned, it occurs that there could be an immense number of practical difficulties, putting aside even the imposition upon the courts to review sentences at regular levels.

[Lord Lemos (Lab)]

My Lords, I thank the noble Lord, Lord Marks, for these amendments, which I understand are seeking to ensure fairness in sentencing outcomes and are clearly rooted in the commitment, as the noble and learned Lord, Lord Keen, said, to ensure that justice keeps pace with society.

That said, it is important to recognise that mechanisms already exist to address perceived injustices, including criminal appeals and sentence reviews, and mandating a formal review every three years with accompanying data and recommendations therefore risks duplicating existing oversight functions and placing additional burdens on the justice system. As the noble Lord will appreciate, there are already pressures in our justice system and it is especially important that we ensure that any reforms that create additional burdens are proportionate, targeted and deliverable.

I note, however, that the recent Leveson review calls for a full review of the Rehabilitation of Offenders Act 1974 to modernise how criminal records are disclosed. The Government are considering this recommendation and will update the House in due course. In addition to that, the Law Commission was invited by the Government to consider the law on criminal appeals. Its consultation closed earlier this year and the responses are currently being analysed. We can expect the Law Commission to report to the Government with recommendations next year. Given that those pieces of work are in train, I hope that gives the noble Lord some assurance that those recommendations will be carefully considered. While we are sympathetic to the principle that fairness underpins these amendments, for the reasons I set out, I ask him to withdraw the amendment.

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[Lord Keen of Elie (Con)]

My Lords, turning first to the amendment in the name of the noble Baroness, Lady Chakrabarti, I must say from the outset that we on these Benches cannot support it. The power to remand a person in custody for their own protection—or, in the case of a child or young person, for their own welfare—is not one that the courts use lightly. It is already tightly circumscribed and deployed only where the alternative would expose an extremely vulnerable individual to serious harm.

To remove that safeguard entirely would be a mistake. There are rare, but very real, occasions when a defendant’s personal circumstances, exploitation by criminal gangs or acute safeguarding concerns mean that the only safe option, in the immediate term, is to keep them in secure accommodation. That judgment, made by a court on evidence and subject to challenge, is not one that we believe Parliament should now deprive them of. Where children are concerned, the imperative is even stronger. The court’s paramount concern must be people’s welfare, and removing this power risks leaving young people unprotected in precisely those situations where intervention is most vital. For these reasons, we cannot support Amendment 140.

We strongly support the principle underlying Amendment 147 in the name of the noble Lord, Lord Foster. Far too many people spend far too long in remand—months and, sometimes, well over a year—awaiting trial or sentence. For all practical purposes, they experience incarceration in the same way as sentenced prisoners. They are deprived of liberty, separated from their families and often held in conditions indistinguishable from the sentenced estate. Yet those in remand do not have the same access to rehabilitative programmes, education, therapy or other forms of support that are routinely offered post sentence.

That is increasingly difficult to justify, particularly given that time spent on remand is overwhelmingly treated as time served for the purposes of the ultimate custodial sentence. If we accept that remand can form a significant part of an individual’s total period in custody, it cannot be right that this is, in effect, dead time, in which they are able neither to progress their rehabilitation nor to address the issues that may have contributed to their offending behaviour.

Therefore, the amendment proposed by the noble Lord is a valuable contribution to a discussion that is long overdue. It does not prejudge the precise mechanisms or impose unworkable obligations on overstretched services, but it rightly challenges us to consider whether the current disparity is effective or conducive to reducing reoffending. The Government should engage seriously with the spirit of these proposals.

Taken together, the amendments highlight two themes that run throughout our debates on the Bill: the need to protect the vulnerable and the need to ensure that custody, whether pre or post sentence, serves a constructive purpose. I hope that the Minister will commit to further work in this area, and I look forward to his response.

[Lord Lemos (Lab)]

My Lords, I thank the noble Baroness, Lady Chakrabarti, for her amendment and for taking the time to discuss her related concerns with my noble friend Lord Timpson. I also thank her for her support for the Bill and its overall intentions—that is very much appreciated coming from someone with her track record.

Amendment 140 would remove an important safeguard which, as the noble and learned Lord, Lord Keen, said, is very rarely used but remains an option for the courts as a measure of last resort and out of concern for the defendant. Eliminating this provision could leave vulnerable individuals without any viable protection, particularly where alternative care arrangements were simply unavailable or could not be implemented swiftly enough. We fear that those may be the consequences. Examples where it may be used include where it is the only option available to the court to keep someone safe, such as in cases where the defendant is a member of a gang and could be subject to repercussions if they were not protected.

I hope it will also reassure your Lordships that the Mental Health Bill, which the noble Baroness, Lady Chakrabarti, referred to, is now in the other place. It includes a reform to end the use of remand for one’s own protection under the Bail Act where the court’s sole concern is the defendant’s mental health. This reform should ensure that remand for one’s own protection is, therefore, used only as a last resort in the circumstances I have outlined.

At this stage, repeal would leave a gap in the available provision. Courts must retain the flexibility to act decisively in safeguarding individuals when no other option exists. The amendment would risk unintended consequences for vulnerable defendants and undermine the protective function of the justice system.

Amendment 147, which I thank the noble Lord, Lord Foster, for tabling, seeks to allow prisoners held on remand to access rehabilitative programmes, education, therapy and other support before the start of their sentence. The Government’s view is that the amendment is not necessary, given that remand prisoners can already access those programmes where prisons run them.

There is also an important legal distinction here that I should highlight to your Lordships. Remand prisoners are held in custody pending trial or sentencing, and some have not yet been convicted. Of course, we recognise that people are spending more time on remand; therefore, as I have said, where these services are available and in the right circumstances, they should be able to access them. However, remand prisoners are legally distinct from sentenced prisoners, and we have to reflect that in the priorities for resources.

There are already mechanisms in place to support remand prisoners, including access to healthcare. At the moment, the Government have no plans to expand all rehabilitative programmes, education, therapy and other support to remand prisoners. This would require substantial changes to prison operations and resourcing, and could divert resources from those already convicted and serving sentences. We recognise, however, some of the changes in the remand population. My noble friend the Minister and I would be very happy to continue to talk to the noble Lord, Lord Foster, about these matters but, given what I have set out, I ask the noble Baroness to withdraw her amendment.

[Baroness Chakrabarti (Lab)]

My Lords, I am so grateful once more to the noble Baroness, Lady Hamwee, but, I have to say, I am disappointed in the responses from both Front Benches on this occasion. They were uncharacteristic, knee-jerk responses that do not display a broader understanding of the other laws of England and Wales that deal—or should deal—with vulnerable people.

The noble and learned Lord, Lord Keen of Elie, mentioned children. There are ample measures for protecting children under the Children Act 1989 and looking after them in more appropriate circumstances than in criminal justice detention. I remind the Committee that we are talking about defendants who are being detained not for the classic justifications that they would commit further offences, interfere with witnesses and so on, but for their own protection. Of course, the criminal justice estate is not a place of safety or protection for anyone.

I did not hear a reply to my question about how this can be justified under Article 5 of the European Convention on Human Rights, but perhaps my noble friend the Minister could drop a note on that and offer it to other Members of the Committee. There will not be too many to send it to because there are not many Members here, but I would be hugely grateful for that.

The noble Baroness, Lady Hamwee, had it right when she talked about a Victorian hangover. There are too many Victorian hangovers in this area of law and policy, and I know that my noble friend Lord Timpson is well aware of that. The thrust of the Bill, in general, is about departing from such Victorian hangovers, such as social death and locking people up and throwing away the key. I urge further reflection.

If I am a member of a criminal gang who wants to turn King’s evidence but I am not charged with a minor offence, I will have to be put in a safe house, and there are schemes and measures to do that. But if I happen to be charged with a low-level offence that does not attract a custodial penalty, I am told that it is a last resort and that I am going to be locked up in a prison system where I will be more at danger from the criminal gang than I ever would be in a safe house. These are rather disappointing arguments from members of the Committee who, on reflection, may think again. I shall certainly return to this on Report, but I beg leave to withdraw my amendment.