Legal Aid Agency: Cybersecurity Incident

Lord Marks of Henley-on-Thames Excerpts

Tuesday 20th May 2025 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, while the Government Benches may criticise the role of successive Governments in preventing cyberattacks, we must not lose sight of where the true blame lies. The primary responsibility for this deeply troubling incident rests with the malicious individuals who orchestrated it.

This was not merely a digital intrusion; it was a direct assault on some of the most vulnerable members of our society. The data accessed is, in many cases, highly sensitive—it includes medical and other personal records—and the scale and nature of the information compromised over a period, apparently, from 2010, may mark this as one of the more serious data breaches that the Government have suffered in recent years.

Given the gravity of the situation, will the Minister confirm how many individuals have been affected? How are the Government supporting the individuals whose data has been exposed? Is he able to confirm the possible motive and identity of the attackers? Has there, for example, been any form of ransom demand from those who perpetrated this act? We welcome the involvement of the National Crime Agency and the National Cyber Security Centre. Their expertise will be essential. Clearly, it is imperative that those responsible for this breach are held to account and brought to justice.

Significant concerns remain regarding the Government’s handling of this matter. I therefore seek clarity from the Minister on a number of issues. Why were Parliament and the public not informed immediately when the breach was discovered on 23 April? We now understand that the data access may include information dating back to 2010, as I said before, and that over 2 million records may have been compromised. The delay of almost a month before this was made public may have prevented individuals taking timely steps to protect themselves from potential risks. Was there a failure to properly appreciate the seriousness of this breach?

Further, can the Minister update the House on the status of the operational systems that are vital for processing legal aid and payments to legal professionals? If these systems are not fully restored, how can we expect to return to full functionality? It may seem odd to talk about payment of legal aid to lawyers but, of course, those working in the fields of criminal law and family law, which are severely underfunded in many respects, will find the cash flow from the legal fund vital to their continuing activities. It is therefore important that that issue should also be addressed.

We heard in the other place that the Government believe that the incident has been contained. How did the Government arrive at that conclusion, and could the Minister explain to the House what is meant by “contained”? Will he confirm whether the Ministry of Justice has conducted or intends to conduct a comprehensive risk assessment of its wider digital infrastructure? Will similar assessments be made in other departments to safeguard against future vulnerabilities?

I also ask the Minister to ensure that Parliament receives regular and transparent updates as the investigation progresses. It is critical that we and members of the public should be informed clearly and promptly about the consequences of this breach and how it is being addressed. The breach itself represents a significant failure in the protection of our justice system’s digital infrastructure. That is liable to undermine public trust and raises serious concerns about data security and transparency, so I ask the Government to respond with urgency and openness to this issue.

Finally, I will raise a question about the devolved Administrations. For example, Scotland has its own legal aid structure, as, I believe, Northern Ireland does also, but those structures in turn depend on data from the United Kingdom—for example, access to social security data. Have they been impacted by this event? If so, what liaison has there been with the devolved Administrations to try to minimise the difficulties that they may have been caused by this data breach? I am obliged.

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

My Lords, this cyberattack and its result have exposed the lamentable insecurity of the Legal Aid Agency data systems. The ramifications are serious. The personal information that goes into legal aid applications and is held by legal aid providers includes much highly confidential material, which can be used by criminals not just to embarrass but to defraud and, in some cases, harass applicants for legal aid. We are told that the attackers in this case accessed residential addresses, contact details, dates of birth, and employment and financial data—indeed, much of the material that identity checkers seek and criminals could profit from. As the noble and learned Lord, Lord Keen of Elie, said, it appears to have affected 2 million items of data and legal aid applications going back as far as 2010. In addition, as became clear in the House of Commons, that information would have included sensitive medical information. Indeed, that must be right, because many applicants for legal aid would include such information with their applications. Can the Minister say whether there are plans to establish a dedicated helpline or other support systems, and if so what support systems, for individuals who may seek advice or protection in the light of this attack?

Of course, our first condemnation is for the callous criminality of the attackers, whose actions exposed so many vulnerable individuals to risk. These cyberattacks appear, according to the Minister in the other place, to have come from organised crime. It would be helpful for the Minister, so far as possible and without jeopardising security, to give an account to the House of what steps the Ministry of Justice takes routinely and has taken in the light of this case to protect the data of those seeking to access legal aid.

This question is similar to one asked by the noble and learned Lord: will the MoJ carry out a full independent inquiry into this attack, and what can be done to restore public confidence in its future cybersecurity arrangements? We understand the need for the Legal Aid Agency’s systems to go offline in the short term, as they have, but can the Government say how long the shutdown of online services is likely to last and how far the legal aid system will be impacted through delays and in reduced ability to deal with its workload?

We should not underestimate the degree to which the MoJ’s IT systems are antiquated, inefficient, insecure and, frankly, unfit for purpose. We on these Benches agree that that results from a neglect of the system over years under the preceding Administration. As the Statement rightly points out, the Law Society has been complaining for years about the outdatedness of our legal aid IT systems. The £20 million promised for updating the agency’s systems will help. However, regrettably, I worry that there is some complacency about the sentence in the Statement that reads:

“At this stage, we believe that the breach is contained to the Legal Aid Agency’s systems; there are no indications that other parts of the justice system have been impacted”.


Can the Minister say whether the Government will now institute a survey of current IT systems across the department to consider their security? Will the department also institute a system of regular cybersecurity audits for the future, to ensure robust defence of its digital systems and to prevent recurrence of this breach?

More widely, this event should act as a wake-up call for government as a whole to investigate how far its IT systems can provide the public with a high standard of data security. We hope that the promised cybersecurity and resilience Bill will bring some improvement, but we will not keep citizens’ data secure without investing the necessary resources. The reality is that we are working with old and inefficient systems that, frankly, grow creakier and creakier, just as the ingenuity and criminality of the potential attackers becomes ever more sophisticated, not least as the value of personal data rises and the potential for its abuse becomes ever greater.

The Statement rightly reminds us that every organisation is at risk from this kind of criminal behaviour and government is not exempt. As a vital part of the social compact, it is a responsibility of government to keep the personal data it holds on individuals secure. If government fails to live up to that responsibility, it rightly forfeits public trust and we concerned are to know, from the Government, how they intend to retain that trust.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

I thank both the noble and learned Lord and the noble Lord for their questions. I will endeavour to answer them as fully as I can. I say at the outset that I share their sense of concern about this breach. It is undoubtedly very serious—one of the more serious ones that have happened to Governments in recent years. I agree, of course, with the point that the noble and learned Lord made, that the primary responsibility is with the criminals who themselves undertook this hacking of the LAF systems.

I want to check and correct one point made by the noble and learned Lord, Lord Keen. He spoke about medical records. As far as we are aware, there are no medical records contained within this system. There is other information available, which is, of course, a great cause for concern, but there are no medical records that we are aware of.

The noble and learned Lord asked when Ministers were first made aware of this breach. The departmental staff stood up an immediate operational response upon being made aware and ministerial colleagues and I have been updated throughout. There is a cross-departmental response under way. But it is fair to say that the seriousness of the breach became evident only some time after we were made aware of the initial breach. It was when the situation worsened that it was decided to put the information in the public domain and report the incident to Parliament.

Noble Lords asked how many people have been affected. We have not put forward a number as such. However, they are right to say that we are talking about all the data going back to 2010. That is many thousands of people. The nature of the data is, indeed, personal and people need to take remedial action if they have had interactions with the Legal Aid Agency to make sure that their data is not compromised. So, if people try to contact them on numbers they do not recognise and so forth, they need to be suspicious and careful.

Another central question was about what the Government are advising people to do if they think they may be victims of this theft of data. The primary port of contact will be the providers themselves—the lawyers and barristers who have been using the Legal Aid Agency. They will be in a better position to advise the people who may be victims. However, if we are made aware of individual people who are particularly vulnerable, the MoJ or the Legal Aid Agency will also endeavour to contact them directly. But the primary source of information will be from the providers themselves.

The noble and learned Lord asked me to comment on the nature of the attack. I cannot do that because there is a criminal investigation under way. I will not comment or speculate on the motive either.

Both noble Lords asked about the current operational system. The current system is offline. We hope to get it online as soon as possible, but I am not in a position to give any commitment on that front. I can say that there are systems in place to ensure that the providers themselves will get paid, so that they can continue to work, but it will be a reduced method of payment. I do not mean that the amount of money is less but there will be less systemisation within the payment, if I may put it like that. Nevertheless, the payments will be made in the immediate future.

I reassure noble Lords that all the various government agencies have been informed about this. There is an ongoing risk assessment and there will be an update to Parliament when appropriate.

I can also tell the noble and learned Lord that the devolved Administrations in Northern Ireland and Scotland have been informed and are well aware of this. Although, as he rightly observed, they have stand-alone systems, there is overlap between the two systems. So, although their own systems will not be affected by this, it may be that they will have more restricted access to data from the Legal Aid Agency, which covers England and Wales.

The noble Lord, Lord Marks, asked about a full independent inquiry. I cannot make that commitment, but I can absolutely say that this is being taken extremely seriously across government. There has been a review of systems in other parts of government and, as far as we know, there are no similar hacking attacks in other parts of government, although of course one should not be complacent about these things. I am absolutely sure that these reviews of the other systems will be ongoing, just to check that no future hacks become apparent.

I do not think it is fair for the noble Lord, Lord Marks, to say that there was a degree of complacency in the statement that we believe the breach is contained; that is an honestly held belief. The many professionals involved in containing this particular breach, but also looking across government, are very acutely aware of how systems need to be updated and kept under review, and there needs to be investment. The noble Lord mentioned the sum of money the Government are going to invest, but it is worth repeating the point made by my honourable friend Sarah Sackman that this breach came to light only because of the extra money we are currently putting into the system. It would not have come to light without that additional investment. But, of course, we want to go further, and we need to go further to make sure that the systems are updated as far as possible.

I do not want to make the obvious political points about the legacy systems. I think we all understand the position we are in. Nevertheless, this is a serious matter, we are not at the end of the road yet and I absolutely undertake that we will keep Parliament informed as the situation develops.

Criminal Cases Review Commission

Lord Marks of Henley-on-Thames Excerpts

Tuesday 20th May 2025 Lords Chamber

Asked by

[Lord Marks of Henley-on-Thames]

To ask His Majesty’s Government, following the exoneration of Peter Sullivan after 38 years in prison, what assessment they have made of performance of the Criminal Cases Review Commission in dealing with cases of miscarriage of justice quickly and decisively.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, my deepest sympathies are with Peter Sullivan for the miscarriage of justice he has faced. The whole criminal justice system must learn from what happened here. I also express my sympathies for Diane Sindall’s family. MoJ officials hold regular meetings with the CCRC executive to monitor the organisation’s performance, and they use a range of factors, including case review timeliness, to do so. The CCRC has a target of completing 85% of cases within 12 months of receiving them. The most recent annual report, which covers the financial year 2023-24, shows that it met or exceeded this target in 10 months out of 12.

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

My Lords, I thank the noble Lord for that answer. Of course, Peter Sullivan’s case is even more extreme than Andrew Malkinson’s—38 years in prison for a murder he did not commit. The issues arising include the CCRC’s refusal to review the case in 2008, the delay in re-examining DNA samples until 2021 and then the further four years it took to bring the case before the Court of Appeal. Pending the promised CCRC review, which the noble Lord mentioned on 7 May, how will the Government now ensure that all current cases are considered urgently and with some independent oversight?

[Lord Ponsonby of Shulbrede (Lab)]

The ministry has provided additional funding for the CCRC to look at closed cases where advances in forensic science could now provide new evidence. The CCRC is actively working with the Forensic Information Databases Service to ensure that it can effectively track and revisit unmatched DNA profiles. The CCRC is in the process of amending its case management system so that it can identify and monitor any cases for relevant scientific, medical or other developments—for example, when DNA testing does not produce a profile.

Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Monday 19th May 2025 Grand Committee

[Lord Beith (LD)]

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

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

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

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

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

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

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

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

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

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

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

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


and then the sixth bullet point says,

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

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

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

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

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

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

[Lord Sandhurst (Con)]

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

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

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

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

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

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

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

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

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

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

“must give effect to those guidelines by regulations”.

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

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

“must be submitted to the Secretary of State”,

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

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

[Lord Timpson (Lab)]

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

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

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

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

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Moved by

[Lord Marks of Henley-on-Thames]

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

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

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

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


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

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

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

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

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

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

[Lord Sandhurst (Con)]

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

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

[Lord Timpson (Lab)]

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

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

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

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

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

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

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

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

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

Amendment 15 withdrawn.

Recalled Offenders: Sentencing Limits

Lord Marks of Henley-on-Thames Excerpts

Monday 19th May 2025 Lords Chamber

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

My Lords, our mission is to protect the public, support victims and reduce crime. The worst thing that could happen for victims is for us entirely to run out of space in our prisons. That is forecast to happen in November, if we do not act now. The change announced last week to recall will create approximately a further 1,400 prison places and give us the time to carry out sentencing reform which, alongside prison building, will bring an end to the prison capacity crisis.

The reasons for that are clear. We have had 11 Justice Secretaries in 14 years. The previous Government built a net 500 prison places; we have 2,400 open already. Probation is a fantastic service that is really struggling. We recruited 1,000 extra probation officers last year and 1,300 this year. However, that is not all; we also have a big problem with drugs in our prisons. However, I can assure the House that offenders who pose the most risk and are actively managed by multiple agencies will be excluded from this measure, as well as those who commit serious further offences. We will publish details of that SI shortly, when we bring the measure before the House.

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

My Lords, limiting recalls is welcome; but these are very short sentences. During the 28-day period, will there be any attempt at rehabilitation or to find out what went wrong and what can be done to help? Will there be any follow-up? The noble Lord, rightly, supports electronic tagging. Have arrangements been made for tagging these recalled prisoners on release if they are not already subject to tagging conditions?

[Lord Timpson (Lab)]

The noble Lord is exactly right. When people have been in prison, it is our job to help them when they leave so that they do not come back. Unfortunately, at the moment, far too many people come back. Electronic tagging has an important role to play—and that role will increase. Tagging is not just for making sure that people can be at home on a curfew; it is so that we can track them where they are. There are also sobriety tags. So, yes, there will be a tool at our disposal when people are released after their recall.

Ex-offenders: Reintegration

Lord Marks of Henley-on-Thames Excerpts

Thursday 15th May 2025 Lords Chamber

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

My Lords, does the Minister agree that the problems highlighted by the right reverend Prelate’s Question are compounded by the prison overcrowding crisis? The need to use whatever space is available on the estate, wherever it may be, hampers access to suitable training courses, disrupts family and community ties, of which the noble Lord spoke, and makes it harder to prepare prisoners for release.

[Lord Ponsonby of Shulbrede (Lab)]

Yes, I agree with the noble Lord’s point, which is why my right honourable friend Shabana Mahmood made the announcement yesterday in which the Government committed to building three new prisons. Those had been announced by the previous Government, but yesterday money was committed to expedite those prisons. It is not because we want to fill those prisons up; it is because prisons need to be run at less than 100% capacity to enable all the rehabilitative activities that can be undertaken in prison to operate to reduce the chances of reoffending. So I agree with the point which the noble Lord made.

Police, Prison and Probation Officers

Lord Marks of Henley-on-Thames Excerpts

Tuesday 13th May 2025 Lords Chamber

[Lord Timpson (Lab)]

It is clear that we inherited a mess from the previous Government, with a prison system on the verge of collapse and decimated neighbourhood policing numbers. This Government took decisive action to alleviate the immediate capacity pressures and are committed to making sure that this situation never happens again. That is why we published the first annual statement on prison capacity and a 10-year prison capacity strategy, and commissioned the Independent Sentencing Review. This Government are also taking steps to rebuild neighbourhood policing, which is why we have made £200 million available in 2025-26 to support the first steps of delivering 13,000 more neighbourhood policing personnel.

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

My Lords, last week the Minister promised a “seismic shift” to improve professional standards across the Prison and Probation Service. He described reports of bullying, discrimination and harassment as

“a wake-up call and an opportunity to change”,

and we agree. Retention rates are very bad: 10.4% of probation officers are leaving annually. For Probation Service officers, who include assistants and trainees, it is over 12%. They have too much to do, often with little experience; 7.8% of prison officers leave every year. Low morale is a major contributor but so are pay and conditions, given the challenges they face. What extra resources will the Government put into recruitment and retention in those services?

[Lord Timpson (Lab)]

Last year we recruited 1,000 extra probation officers, and this year we are recruiting 1,300. It is clear that it is not just about recruiting staff and training them; it is about embracing technology to help them do their jobs better. Last week we announced that we would agree to all 12 recommendations of the Rademaker review, and we are very grateful to one of HMPPS’s non-execs, Jennifer Rademaker, for all the work she did on it. It is totally unacceptable that our staff have to work in conditions where they are bullied, belittled and sexually harassed, and as Minister I am determined to stamp it out. Retention rates are not where I would like them to be. I am working very hard to make sure that HMPPS is a world-class organisation. That means high rates of training, high rates of morale and high rates of success.

Uncollected Financial Penalties

Lord Marks of Henley-on-Thames Excerpts

Tuesday 13th May 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

What the Government will do is write to the noble Lord. After much time in this House, I know that this issue comes up very regularly. If there was a simple answer to that question, I am sure it would have been found. Nevertheless, it is a real issue. It undermines confidence in the parking fines system, and it undermines confidence within the wider community if certain groups are not paying their fines. It is a serious issue, and I understand that. If there is more I can say, I will write to the noble Lord.

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

My Lords, as the noble Lord, Lord Hogan-Howe, said, many financial penalties go uncollected. Does the noble Lord agree that we are, in respect of such offenders, imposing far too many financial penalties? Should we not be making more use of community service and the probation services in those cases where there is no hope of collecting payment?

[Lord Ponsonby of Shulbrede (Lab)]

It is an interesting question—one which I used to grapple with regularly when I sat as a magistrate in Westminster. The noble Lord is asking that the sentencer increase the sentence from a fine to a community order, increasing the sentence for certain people who are unable to pay their fines. It may be that this is taken into account when sentencers make that judgement, but it is an inflationary—if I could use that word—solution to a problem. Nevertheless, of course, when sentencers impose fines, they have to take into account the means of those whom they sentence.

Criminal Cases Review Commission

Lord Marks of Henley-on-Thames Excerpts

Wednesday 7th May 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

The noble and learned Baroness is right to say that there is concern with the CCRC. The Lord Chancellor has recognised that and has put in place the framework, if I can put it like that, to consider change, which may be radical change—we wait to see. There certainly are concerns with the operation of that body.

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

My Lords, Andrew Malkinson served 17 years for a rape he did not commit. The CCRC is supposed to be the last hope for victims of miscarriages of justice; a safety net to ensure that wrongful convictions are examined with diligence. An independent review demonstrated that the CCRC carelessly missed several opportunities to overturn that conviction. In her recent evidence to the Commons Justice Committee, the chief executive demonstrated a complete lack of the required diligence. Is it not now time for her to go and to be replaced, as the noble and learned Lord, Lord Garnier, suggested, by a full-time, executive, highly qualified chair?

[Lord Ponsonby of Shulbrede (Lab)]

I absolutely recognise the point that the noble Lord made about Andrew Malkinson, who suffered a terrible miscarriage of justice. I understand there has been an interim payment made to him and that it is currently under consideration what the final award will be. My understanding is that the CCRC commissioned its own separate independent review into its handling of Malkinson’s issue and the applications, led by Chris Henley KC. The review, published in July 2024, set out multiple organisational and individual failings leading to that miscarriage of justice. That forms part of the overall review to which I have referred in earlier answers.

Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Marks of Henley-on-Thames Excerpts

2nd reading
Wednesday 7th May 2025 Lords Chamber

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

My Lords, I echo the eloquent tributes to the noble and learned Lord, Lord Etherton, from the noble and learned Lords, Lord Thomas of Cwmgiedd, Lord Hope of Craighead and Lord Phillips of Worth Matravers. He will be greatly missed not only by those in this House who have had the privilege of hearing him over recent years, but by the wider legal public and the public in general.

It is with great pleasure that I join others in praising the excellent maiden speech of the noble Baroness, Lady Nichols, particularly, if I may say so, the very personal account she included in it. It was also a great pleasure to hear from the noble and right reverend Lord, Lord Sentamu, the Yorkshire perspective on the noble Baroness’s contribution to public life.

Nothing I have heard today has persuaded me that this Bill is either necessary or sensible. We on these Benches regard it as an overreaction to a difference, little more than a misunderstanding at the outset, between the Lord Chancellor and the Sentencing Council. What is more, it is a misunderstanding that could and should have been sorted out informally, by discussion and compromise, without resort to emergency legislation, as the noble Lord, Lord Bach, said.

We believe that this Bill proceeds from a false premise—a fallacy, indeed—that that the Sentencing Council has produced guidelines that depart from the principle that everyone is equal before the law. We in this House all believe in equality before the law. The argument advanced for the Bill is that if PSRs are obtained more readily for particular cohorts of offenders, those offenders are less likely to go to prison, which, so the argument goes, amounts to two-tier justice. But as my noble friend Lord Beith pointed out, this Bill is about the provision of pre-sentence reports, not sentencing offenders differentially. PSRs are written to assist judges in making the right sentencing decisions.

I suggest that the two-tier justice argument misrepresents what equality before the law means. What it means is the courts treating everyone alike, with neither fear nor favour. That is the significance of the saying that justice is blind and of the iconic statue that tops the Old Bailey. It is about applying the law even-handedly.

It does not mean ignoring the evidence—still less skewing the evidence by depriving the court of the ability to do justice on the basis of all the available evidence and information, and so weakening the ability of the court to dispense justice. The underlying reality, which this Bill ignores, is the glaring inequality of outcomes in our criminal justice system, whereby offenders from ethnic minorities have historically been far more harshly treated by sentencing courts. They are far more likely to go to prison than their white counterparts, and, as the noble and learned Lord, Lord Phillips, pointed out, for longer.

For the evidence of that, one has only to read the well-researched and well-argued 2017 final report of the Lammy Review, as mentioned by the noble Baroness, Lady Mattinson, and the noble and learned Lord, Lord Phillips. The noble Baroness, Lady Jones of Moulsecoomb, was among many who reinforced this important point. The Bill does nothing to address that reality—far from it. It ignores three very real truths.

The first is that PSRs are the only reliable way that judges can obtain a full and true account of the individual circumstances of the offenders they are called upon to sentence. These reports are a vital source for judges of independently collated information about those individual circumstances, which they need to take into account when deciding between imprisonment or a community sentence. They cannot get such information from speeches in mitigation, however well-constructed and presented by defence counsel, because they are made on defendants’ instructions and cannot be verified.

The second truth is that, as the Minister reminded us, while PSRs ought to be before judges in every case before sentencing—certainly in every case where a prison sentence is possible but not inevitable—their availability in practice has substantially declined in recent years. The reason for that is uncontroversial. Resources for the Probation Service have been progressively reduced and mismanaged by government over the years. The Minister reminded us that the number of PSRs has reduced by 44% over 10 years.

The third truth is that the quality of the reports that have been produced has declined as the time allowed to probation officers to produce individual reports has been reduced, allegedly to save money. My noble friend Lady Hamwee and the noble Lord, Lord Bach, spoke in some detail of the present weaknesses of many reports. We thoroughly welcome the Government’s commitment to increasing resources for the Probation Service generally and for the provision of more detailed and thorough PSRs in individual cases in particular.

I agree with the noble Baroness, Lady Nichols, that we should be making thorough pre-sentence reports available for all offenders where the options are custody or a community sentence, to enable the court to have the fullest material about individual circumstances of offenders when sentencing. Where I part company with the Government and the noble Baroness, Lady Nichols, is that it neither logical nor defensible to say, “Well if we can’t afford reports for all those at risk of prison, we will forbid the judges to prioritise the most vulnerable groups in the interests of an artificial equality”. Yet that is what this Bill proposes. I agree with the right reverend Prelate the Bishop of Gloucester that it is plain wrong to forbid prioritising pre-sentence reports in the face of a lack of resources.

That is not to uphold equality before the law in the face of a misguided guideline. It is to prevent the Sentencing Council performing its function in the most helpful way possible by addressing the inequality of outcomes that bedevils the system as it operates at present. It is all very well for the Minister to say that the causes of unequal outcomes are presently unknown, but there is a mass of evidence to the contrary.

Even the proposition that doing without PSRs saves money is deeply flawed. If, following the logic of the two-tier justice argument, more PSRs lead to fewer custodial sentences, then PSRs do not increase public costs; they save the public money. No one denies that prison is far more expensive than community sentences. That is true on all the evidence, even leaving out of account the knock-on effects of imprisonment on prisoners’ families, housing, employment and dependence on the state, and the effects of all that on the public finances.

Then there is the clear evidence that community sentences are far more effective than prison at reducing reoffending. Reoffending costs the public purse on the average estimate about £18 billion a year. If PSRs are more widely available, then that may contribute to a reduction in reoffending and so a saving of resources.

The Bill raises two constitutional issues. The Constitution Committee has considered this Bill and has prepared a report, which has technically been published today, but of course no one has had time to read or consider the report. That rush is relevant to the first constitutional issue, which is an issue on which the committee criticised this Bill—the use of fast-track emergency legislation once any emergency has passed.

As we know, the Sentencing Council paused implementation of the guidelines, specifically to give this Parliament time to take a view. This Bill has no place being treated as emergency legislation. It has been rushed at every stage. The rules about time lapse between stages are designed to allow time for reflection and consultation between stages, not just in Parliament but outside. This Bill has suffered from a lack of both.

The second constitutional issue is this: while I accept that Parliament has the power and right to legislate to alter the powers or functions of the Sentencing Council, the council is itself a creature of statute and that power ought to be exercised with great caution. The Sentencing Council was established by the Coroners and Justice Act as an independent body to give advice to judges. Its purpose is to assist the judges in the conduct of their sentencing decisions and to help them to achieve the appropriate level of consistency in sentencing approaches and outcomes. That is a judicial function. It is not sensible for the Executive to interfere. Parliament sets out maximum sentences and a set of rules. But it is dangerous for the Executive to interfere, through introducing an Act of Parliament, with the way the sentencing guidelines are then produced, and to set out what they should or should not contain. That runs some risk of an unwarranted and unhelpful interference by the Executive in the working of the judiciary.

In the House of Commons, Robert Jenrick, the Conservative justice spokesperson, proposed an amendment proposing what was in effect a veto over sentencing guidelines produced by the Sentencing Council. In this House, the noble Lord, Lord Jackson, proposed much the same thing. That is inappropriate.

In addition, the Bill is incoherent in its drafting—what the Constitution Committee politely calls “legislative uncertainty”. I do not wish to go into detail because the points made throughout the House by my noble friend Lady Hamwee, the noble and learned Lords, Lord Thomas of Cwmgiedd and Lord Hope, the right reverend Prelate the Bishop of Gloucester, and the noble Lords, Lord Bach and Lord Verdirame, on personal characteristics are surely right. Are not pregnancy, being transgender and sexual orientation all personal characteristics? They are also circumstances that a sentencing court might want to take into account, as well as ethnicity, particularly where those characteristics give rise to persecution, abuse and psychological and mental health issues. Those are just the kind of factors that might be considered and explained in PSRs. Why should sentencing guidelines not indicate that some of these characteristics are important and make a PSR more valuable to judges?

For my part, I find any distinction between personal characteristics and personal circumstances ill-defined and unhelpful, and I agree with the noble and learned Lord, Lord Hope, and my noble friend Lord Beith that the wording of the prohibition is profoundly unhelpful. I shall not take up the invitation of my noble friend Lady Hamwee to foreshadow at Second Reading amendments that might later be considered. We have heard a number of suggestions for Committee. I would also consider the insertion of the words “without good cause” into the prohibition, to allow for some assessment of what may or may not be sensible. But that is for the next stage of these proceedings, so I shall leave it there.

Whiplash Injury (Amendment) Regulations 2025

Lord Marks of Henley-on-Thames Excerpts

Tuesday 6th May 2025 Grand Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, this draft instrument amends the fixed tariff for whiplash compensation, set by the Whiplash Injury Regulations 2021, by applying an inflationary uplift to the tariff values. In doing so, this amendment gives effect to recommendations made by the Lord Chancellor on 21 November 2024, following the completion of her statutory review of the 2021 regulations. By adjusting the whiplash tariff values to account for inflation, the Government will ensure that claimants can continue to receive proportionate compensation until the next review in 2027. These amendments were debated and approved in the other place on 2 April. I also remind the Grand Committee that the Secondary Legislation Scrutiny Committee has drawn this SI to the attention of the House.

The whiplash reform programme changed the way claimants are awarded damages for low-value whiplash injuries following from road traffic accidents. The aim of the reforms was to ensure an efficient, proportionate and reliable system for both claimants and defendants involved in road traffic accident-related whiplash claims. At their core, the measures aimed to reduce the number and costs of whiplash injuries and deliver savings to consumers via reduced motor insurance premiums.

Elements of the reform programme were delivered through the Civil Liability Act 2018, which introduced several important changes to the civil claims process. Alongside measures that introduced a legal definition of what constitutes a whiplash injury and banned the settling of such claims without medical evidence, the 2018 Act empowers the Lord Chancellor to set a fixed tariff for damages for road traffic accident-related whiplash injuries lasting up to two years. The 2018 Act measures were supported by additional secondary legislative changes to increase the small claims track for road traffic-related personal injury claims from £1,000 to £5,000, and the introduction of a new pre-action protocol for personal injury claims below the small claims limit in road traffic accidents. At the same time, the insurance industry-owned and developed Official Injury Claim portal was launched to assist claimants affected by the reforms.

The first whiplash tariff was set by the Whiplash Injury Regulations 2021—which I will refer to as the 2021 regulations—which came into force on 31 May 2021. The 2018 Act requires the Lord Chancellor to review the 2021 regulations, and thereby the whiplash tariff, within three years of its implementation, and within every three years thereafter. In fulfilment of this statutory obligation, the first review of the whiplash tariff was completed on 22 May 2024, and the Lord Chancellor published her report of the statutory review on 21 November 2024.

On reviewing the 2021 regulations, the Lord Chancellor concluded that the structure and component parts of the whiplash tariff were effective. However, she recommended that the tariff amounts be uprated to account for CPI inflation between 2021 and 2024, and to incorporate a three-year buffer to account for expected inflation until 2027. She did not consider that any other changes to the 2021 regulations were necessary. In reaching her conclusions and recommendations, the Lord Chancellor took into consideration relevant industry and courts data, as well as information from a Ministry of Justice call for evidence, which ran from 6 February to 2 April 2024. In accordance with the review, this statutory instrument increases the whiplash tariff damages values and, subject to approval by both Houses, the new tariff will apply to all road traffic accident-related personal injury claims in England and Wales from 31 May 2025.

I hope noble Lords will find it helpful if I provide some additional explanation of the increase that will be applied to the whiplash tariff. By way of background, I should say that the whiplash tariff operates via a rising scale of fixed compensation payments determined by injury duration, up to a maximum of two years. The payments in the original whiplash tariff set in 2021 range from £240, for whiplash injuries lasting three months or less, to £4,215 for whiplash injuries lasting between 18 and 24 months. There is a separate, slightly higher tariff for cases where any minor psychological injury, such as low-level travel anxiety, is incurred at the same time as the whiplash injury. Claims for whiplash injuries that last longer than two years fall outside of the fixed tariff.

When the tariff was first implemented in 2021, the amounts were set to include a three-year “buffer”, which was designed to account for expected inflation according to available forecasts at the time and to ensure that claimants were not undercompensated in the years between the tariff’s implementation and the first statutory review. In reviewing the 2021 regulations, the Lord Chancellor recognised the impact of inflation on the whiplash tariff amounts. Inflation over the first three-year period ran at a higher-than-expected rate and, as most respondents to the 2024 call for evidence noted, the real value of the tariff had fallen. In the light of this, she concluded that the tariff should be uprated by actual inflation between 2021 and 2024 and should again include a buffer to account for expected inflation until the next review in 2027. Therefore, the whiplash tariff will be increased by around 15% for claims arising from road traffic accidents occurring on or after 31 May 2025.

As I have already mentioned, this increase has been calculated using the consumer prices index inflationary measure. After careful consideration of the available data and evidence, the Lord Chancellor determined that CPI remains the most appropriate measure for uprating the tariff amounts by inflation. It is also worth noting that the use of CPI is in line with common practice across government, as recommended by the Office for National Statistics. In contrast, she considered that the alternative retail price index measure, if applied, would likely overstate inflation.

In accounting for inflation, the Lord Chancellor also decided that the whiplash tariff should continue to be future-proofed by applying a CPI rounding over three years from 2024 to 2027. This approach is consistent with the method used to protect claimants from additional inflationary impacts when the first whiplash tariff was set in 2021. Although this three-year buffer could lead to some overcompensation in the short term, not implementing it would allow the real value of claimants’ damages to decrease and would risk significant under- compensation in the long term. Therefore, this buffer protects access to justice and minimises the risk of claimants being undercompensated in the years leading up to 2027.

As noted by the Secondary Legislation Scrutiny Committee, the call for evidence showed opposition to the buffer in its present form. Of the 32 respondents, 29 opposed the use of the three-year buffer, but, crucially, their reasons for doing so were different and, in the opinion of the Lord Chancellor, unconvincing. Some respondents suggested that the buffer would artificially increase the amount of compensation available and potentially undermine cost savings. However, the difference in tariff levels using the buffer is not substantial enough to impact significantly on savings. The tariff amounts are being adjusted only to account for inflation; as such, it is our view that this does not represent a real-terms increase in claim values.

Conversely, I am aware that other stakeholders preferred that the whiplash tariff should be either subject to an annual review or index-linked to inflation to ensure annual increases. As the Lord Chancellor made clear in her report, these arguments are not compelling. A three-year review period, as anticipated in the 2018 Act, strikes the right balance between adequately compensating claimants and maintaining a stable system that is as simple to understand and administer as possible.

It is worth noting that the recent high inflationary cycle was driven by a unique set of circumstances and is not a regularly occurring event. Therefore, while it is appropriate that the whiplash tariff is regularly reviewed against inflation, three years is the appropriate length of time at which to hold such reviews. Other than uprating the whiplash tariff to account for actual and expected inflation, as I have explained, no other amendments to the 2021 regulations are made by this instrument.

In accordance with her statutory obligation, the Lord Chancellor consulted the Lady Chief Justice before making this instrument. The Master of the Rolls, on behalf of the Lady Chief Justice, expressed his endorsement of the proposal to uprate the whiplash tariff. He also noted that the judiciary would not welcome any further derogation from the principle that damages are assessed and awarded by the courts. As noble Lords have seen, in accordance with the powers conferred on the Lord Chancellor by the 2018 Act, this instrument adjusts only the level of damages for whiplash injuries lasting up to two years.

I believe that the amendments that this instrument will make to the 2021 regulations represent a balanced, proportionate and practical approach to uprating the whiplash tariff ahead of the next review in 2027. I beg to move.

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

My Lords, I am grateful to the Minister for his careful and comprehensive introduction to this statutory instrument. Its central point is to update the 2021 level of damages, having regard to inflation. We welcome that update, and I say at the outset that we have no objection to the use of the consumer prices index for the uprating, nor do we suggest that three years is an unacceptable review period. We welcome the buffer for future-proofing, as the Minister described it. That will take us to 2027, which will follow a further review.

I am bound to say in passing that I hope the Minister is right that the higher rate of inflation that we experienced recently is a one-off event and not likely to be repeated. His economic forecasting may be better than mine, but I note that it is shared by the Lord Chancellor, who is venturing into unexpected fields —so be it.

However, I continue to have the doubts that I expressed in 2018, when what is now the Civil Liability Act was being considered. For my part, I am not convinced of the merits of a tariff for damages for whiplash injuries, particularly at the higher end of the scale for such injuries. Whiplash injuries—even minor ones, and, in particular, those with psychological consequences—cover quite a range. The sums, which approach £5,000 at the higher end of the scale, for the 18 to 24-month duration injuries, represent a considerable sum of money for many claimants, who may feel short-changed by the fact that there is no discretion applied to the award of damages for pain, suffering and loss of amenity in their case. I still suspect that we would be better served by enhanced scope for greater judicial discretion by district judges and, in some cases, circuit judges, assisted by Judicial College guidelines, so that claimants would feel that they had had individual attention, rather than by the rigid application of a tariff. Those were the points that I and my colleagues made in 2018.