Sentencing Council Guidelines

Lord Marks of Henley-on-Thames Excerpts

Thursday 3rd April 2025 Lords Chamber

[Lord Keen of Elie (Con)]

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

My Lords, I thank both noble Lords for the points they have made and the questions they have asked. To set the scene, we believe the guidelines, as formerly suggested, risk differential treatment before the law, and that is why we opposed them. We asked the Sentencing Council to revise the guidelines, and it did not do so. The Lord Chancellor introduced legislation a couple of days ago to address the specific issues to which the Government object, and the Sentencing Council has put its guidelines on hold while Parliament has its say on these matters. The Lord Chancellor has gone further than this: she has committed to reviewing the role of the Sentencing Council more broadly and is considering all options. We are grateful to the Sentencing Council for pausing the introduction of the guidelines so that Parliament can have its say on the Bill that has been introduced.

The noble and learned Lord, Lord Keen, referred to the Conservative Party’s proposed Bill. We believe that that Bill goes wider than necessary, and the Bill that the Government are putting forward is addressing the specific point within the guidelines to which the Government object, but we acknowledge that there are wider considerations, and that is why my right honourable friend has put in place this wider consideration of the role of the Sentencing Council and its recommendations. I reject the noble and learned Lord’s assertion that magistrates and judges were blindsided. I do not think they were, and I do not think there would have been any inadvertent sentencing. I reject that accusation. I think there is a core problem here, which my right honourable friend has acted swiftly to address.

I agree with a lot of the points made by the noble Lord, Lord Marks. I was just reflecting that, in my previous role as a magistrate, I would have ordered many hundreds of pre-sentence reports, but I am conscious that, sitting in this Chamber now, there are colleagues who would have ordered many thousands of pre-sentence reports throughout their career. Of course, I agree with the points he made that they are an invaluable tool for anybody seeking to sentence in our criminal courts and that they had been degraded under the previous Government in their use and, to be frank, in the trust they were held in by sentencing magistrates or judges. It is very much the current Government’s intention to increase the number of probation officers—there were 1,300 more last financial year and there will be another 1,000 in the current financial year, and it is very much anticipated that there will be an enhanced role for the probation services as we move forward with future recommendations on sentencing, which are imminent. I agree with the general points that the noble Lord made about the importance of pre-sentence reports, and we want to build on that.

On the point the noble Lord made about the wider cohorts which are not explicitly referred to in the published Bill, I make the point that any judge or magistrate can always order a pre-sentence report as they wish. That has always been, and remains, the situation. Just because a specific cohort was not referred to in the Bill does not mean that judges cannot go ahead and order pre-sentence reports as they see fit. Nothing has changed in that context.

In conclusion, this is clearly a difficult situation. However, the Lord Chancellor has strong views on these matters, and it is of utmost importance that the wider public have, and continue to have, faith in our court system and the judiciary, which the Government certainly hold in the highest regard.

Sentencing Council Guidelines

Lord Marks of Henley-on-Thames Excerpts

Wednesday 2nd April 2025 Lords Chamber

[Lord Timpson (Lab)]

I thank my noble friend for the question. I am sure he is aware that I am not an expert on Scottish law, as I know some other noble and noble and learned Lords are. However, our position is that the Sentencing Council’s guideline could lead to differential treatment before the law. That is why we have acted as we have. Any judge can still ask for a pre-sentencing report in any case where they consider it necessary.

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

My Lords, we are all committed to equal treatment, but there is a mass of evidence, including the Lammy review, that ethnic minority defendants are far more likely to be sent to prison than their white counterparts. So we already have a two-tier justice system. Thorough pre-sentence reports are the only robust way to address that, and that is what the proposed guideline is about. Instead of emergency legislation, can the Government not, even now, work with the Sentencing Council to reach a solution that addresses damaging rationing of pre-sentencing reports and ensures that the personal circumstances of defendants in vulnerable cohorts are fully considered?

[Lord Timpson (Lab)]

Nothing in the Bill prevents judges requesting a pre-sentence report for pregnant women—it is normal practice for judges to request pre-sentence reports in cases involving pregnant women—nor does the Bill affect Court of Appeal case law, which states that a pre-sentence report is desirable in those cases. I believe that pre-sentence reports are very important, but they have declined in number considerably over the last 10 years. From 2013 to 2023, they declined by 44%. That is why we are putting extra resources into probation, recruiting more probation officers so that they have the time to produce high-quality pre-sentence reports.

Crown Court Criminal Case Backlog

Lord Marks of Henley-on-Thames Excerpts

Thursday 20th March 2025 Lords Chamber

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

My Lords, this has been a wide-ranging and impressive debate, and I thank the noble Lord, Lord Carlile, for securing it and for the comprehensive and persuasive way in which he opened it. I also join with everyone in congratulating the noble Baroness, Lady Longfield, on her excellent and moving maiden speech. Her long experience with the charity 4Children and as Children’s Commissioner will be invaluable, and she has shown today how she will give us a fuller insight into how the criminal justice system impacts on the lives of children and young people.

The Motion of the noble Lord, Lord Carlile, rightly concentrates on the impact of delays on evidence, victims and the fairness of proceedings for defendants. Last Tuesday, following the Lord Chancellor’s Statement to the House of Commons, I described the current backlog of 73,000 cases awaiting trial as “an utter disgrace”. The noble Lord, Lord Carlile, and the noble and learned Lord, Lord Burnett of Maldon, have given us some more of the figures.

I maintain that the Government could mitigate these delays with determined and urgent action to reduce them. Every lawyer who has worked in trials, civil and criminal, as the noble Lord, Lord Meston, said, well knows that evidence becomes less accurate with the passage of time. The accounts of honest witnesses often differ markedly, even when events are recent and reasonably fresh. Discerning the truth becomes much more difficult as time passes. Recollections fade, witnesses become unavailable, and details are forgotten—often, details which could help distinguish accuracy from falsehood, whether deliberate or unintended. Then, documents get lost, or their meaning and import are not recalled.

Unreliable evidence means unreliable trials, often leading to surprising acquittals where juries cannot be sure of guilt. There is also a risk of unsafe convictions, particularly where defence evidence cannot be found or witnesses traced and called. As the noble Lord, Lord Carlile, and the noble Baroness, Lady Levitt, pointed out, the problems are compounded by our having a demoralised, frustrated and often overstressed judiciary, and, as my noble friend Lord Thomas and the noble Lord, Lord Sandhurst, said, an underpaid and unhappy cadre of barristers.

The Motion speaks of the effect on victims. In that context, we rightly stress the effect of years of delay on victims of sexual violence, with many dropping out of prosecutions because they simply cannot take the strain, as the right reverend Prelate the Bishop of London described. That is desperately unjust for the victims, who feel they have no option but to let the perpetrators go free and to live with the guilt that goes with the fear that those same perpetrators will reoffend against other victims. So, perpetrators are not brought to justice, and that means a widespread lack of public confidence in the justice system as a whole.

The Minister mentioned last week that there were courts—he mentioned Bristol—where sexual violence cases were treated separately and brought on faster than other cases. Should not that be a general practice? But it is not just in sexual violence cases where victims suffer from these delays; court delays blight the entire system.

Then, the Motion speaks of unfairness to defendants. Innocent defendants are deprived, sometimes for years, of the chance to clear their names. They and their families suffer unjustly through the process, often ostracised by friends, losing employment and suffering intolerable strain for extended periods. Defendants who are guilty can lose the chance of early access to rehabilitative services, sometimes in ways that might be surprising.

Many defendants, as we all know, need help with mental health issues, but they can be cut off from treatment. My daughter, an NHS doctor, has referred me to the exclusion criteria of one NHS trust for access to talking therapies. Such therapies are not available to

“Individuals who are undergoing court or legal proceedings which involves harm to others”,

and I do not believe this is atypical. So, defendants to a charge of violence cannot access, sometimes for years of delay, a service that might really help them to address the mental issues that brought them before the court in the first place. Thus, the cruelty of justice delayed takes a serious toll on the lives of all those affected.

What is to be done? First, the MoJ must take up all the sitting days the Lady Chief Justice says are available. My noble friend Lord Thomas referred to her views, and I have no doubt that she is right: whatever the exact figure, there are several thousand extra days that could be utilised.

The first reason given by the Minister last week for not taking up those extra days was competition for resources, but long delays in court hearings do not save money—they cost money. The delayed trials have to be paid for in the end, and meanwhile there are more defendants in prison on remand, as the noble Baroness, Lady Porter, said. They may be acquitted or receive community sentences at the end. There are more defendants, victims and families with their lives on hold, making greater demands on public resources as they await delayed trials. I agree with the noble and learned Lord, Lord Bellamy, on increasing efficiency to reduce costs in this area.

The second reason given by the Minister last week was the need to have some headroom in the system to accommodate surges in demand for court time, caused by events such as the riots last summer. That argument has some force, but it would be better for such headroom to be provided—if the need arises—by emergency measures in the short term, rather than by tolerating unjust and unacceptable delays in the long term.

As others have pointed out, the court maintenance programme needs to be put on an emergency footing so that our, frankly, decrepit courts—many unusable and unused, as the noble and learned Lord, Lord Bellamy, pointed out—can be restored to full service, with temporary buildings used while the necessary repairs are undertaken.

Last week I suggested that the Government should consider evening and weekend sittings for uncontested cases, leaving more court days available for trials. Might the Minister respond to that suggestion?

I also agree with the suggestion of the noble Baroness, Lady Levitt, that we should have criminal masters to deal with a raft of applications that do not need the attention of judges. More of the Nightingale courts may have to remain open for longer than planned—even if they are not ideal, as the noble Lord, Lord Meston, pointed out. As the noble Lord, Lord Stevens, said, they can be used.

We need to improve procedures, so that fewer cases are adjourned because of the listing errors and prison transport mistakes that currently bedevil the Crown Courts. I also agree with the procedural suggestions of the noble Lord, Lord Carlile, for more advanced notice of skeleton arguments to be deployed. I have always agreed with the noble Baroness, Lady Coussins, on the need for efficient interpretation.

The Government accept that more must be done and that, even with the measures they are taking, the backlogs will grow. They pin their hopes on proposals for structural reform, but we cannot rely only on the hope that the Leveson review will solve the problem. Certainly, in time, structural reform of the system may help. For my part, I am loath to restrict jury trials, not least for the reasons given by the noble Baroness, Lady Hazarika, and the noble Lord, Lord Meston, that juries are multiracial and tend to be non-discriminatory.

I see the possibilities, mentioned by the noble Lord, Lord Carlile, of a new solution for long fraud trials. When it comes, Sir Brian’s report will have to be carefully considered, the Government will need to respond and any reforms will take time to implement, and even more time to have an effect on the backlogs. Given the urgency, we do not have that time.

Sentencing Council Guidelines

Lord Marks of Henley-on-Thames Excerpts

Wednesday 19th March 2025 Lords Chamber

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

The Sentencing Council is independent of Parliament and government. The council decides on its own priorities and workplan for producing guidelines. The Lord Chancellor was clear about her discontent with the guidance when it was published on 5 March, which was the first time that she and other Ministers had heard about it. It is her view, and mine, that there should not be differential treatment before the law. The Lord Chancellor met with the chair of the Sentencing Council last Thursday and had a constructive discussion. The Lord Chancellor will be setting out her position in writing to the Sentencing Council and it has agreed to reply before 1 April. We will not get ahead of ourselves beyond that.

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

My Lords, the Lord Chancellor was reportedly incandescent that the new guideline appeared to suggest that lighter sentences should be imposed on members of ethnic minorities. I take a different view from the noble and learned Lord, Lord Keen, but I find the Lord Chancellor’s position baffling. As the chair of the Sentencing Council, Lord Justice William Davis, explained in his letter to her, the imposition guideline is absolutely not suggesting that lighter sentences should be imposed on ethnic minority offenders. Rather, it is concerned with setting out when pre-sentence reports are particularly important.

As the Minister is well aware, there is strong evidence—often discussed in this House—that offenders from ethnic minorities are more likely than their white counterparts to receive immediate custodial sentences, and particular care is needed to change that. We all agree on equality before the law and the guideline is intended not to encourage unfair sentencing but to prevent it. So, on reflection, do the Government now agree that, in view of their vulnerability to unfair sentencing, the guideline is right to highlight the need for pre-sentence reports for ethnic minority offenders?

[Lord Timpson (Lab)]

The issue of tackling disproportionate outcomes in the criminal justice system is a matter of policy and should be addressed by Government Ministers and not the Sentencing Council. It is my view and that of the Lord Chancellor that everybody should be treated equally in the eyes of the law. It is worth noting that the party opposite was not only consulted but welcomed these guidelines when it was in office. The former Minister for Sentencing wrote a letter to the Council setting this out on 19 February 2024 in which he stated:

“In particular, we welcome the clarification provided by the council regarding … fuller guidance around the circumstances in which courts should request a pre-sentence report”.

Online Procedure Rules (Specified Proceedings) Regulations 2025

Lord Marks of Henley-on-Thames Excerpts

Monday 17th March 2025 Grand Committee

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

My Lords, this instrument will specify proceedings for which the Online Procedure Rule Committee can make rules. The OPRC, established under the Judicial Review and Courts Act 2022, aims to modernise the civil, family and tribunal jurisdictions by developing rules governing the practice and procedure for specific types of online court and tribunal proceedings. These rules are intended to be simple, accessible and fair. They will streamline online processes and enhance the overall efficiency of the system. The OPRC cannot make any online procedure rules until the proceedings are specified in regulations.

I shall explain the proceedings for which this SI will allow the OPRC to make rules. In the civil jurisdiction, the OPRC will be able to make online procedure rules for property proceedings. The Ministry of Justice and HM Courts and Tribunal Service are working closely with MHCLG to ensure that the justice system is fully prepared for the implementation of the Renters’ Rights Bill. As part of this, HMCTS will digitise the court process for landlords to regain possession of their property, introducing a digital service for both landlords and tenants. Procedure rules will be required to allow use of this service. Parliamentary approval of the statutory instrument will enable the OPRC to make these rules. The digital service, and the rules, will reflect the renters’ rights measures as and when they are brought into force. The introduction of the digital service, and the rules which underpin it, are not, however, tied to the timelines for bringing the measures in the Renters’ Rights Bill into force. The OPRC will also be able to make online procedure rules for property proceedings in the First-tier and Upper Tribunal. This will allow certain cases currently dealt with by the Property Chamber or the Lands Chamber to be included in online procedure rules as and when HMCTS introduces digital systems that mean that those cases are managed online.

In the family jurisdiction, the OPRC will be able to make rules for financial remedies. This will include contested financial remedies and financial consent orders, for example, following a divorce. Online procedure rules for these proceedings will be designed to support the existing online services provided by HMCTS, which are currently governed by practice directions made by the Family Procedure Rule Committee.

The extent of this instrument is UK-wide. Its territorial application is England and Wales in respect of civil and family proceedings and UK-wide in respect of tribunal proceedings.

We believe that the digitisation of court and tribunal processes requires the development of procedure rules that are suitable for the digital age. They must be concise and straightforward to understand. They must support HMCTS and the judiciary to deliver online processes and keep adapting to advances in technology. These aims will be met by the transfer of these specified proceedings to the OPRC, a cross-jurisdictional rule committee whose members include experts in the law and in the development of user-focused digital services. I beg to move.

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

My Lords, I am grateful to the Minister for his helpful introduction to these proposed regulations. We on these Benches support the introduction of digital procedures, certainly where they can be introduced without any adverse impact on the fairness, transparency and user-friendliness of the procedures as a whole. We agree that digital procedures have the potential to streamline court proceedings, cut delay and costs and, to use the Minister’s words, produce a straightforward and concise procedure that will be more accessible. We supported the introduction of online procedures when the Judicial Review and Courts Act was debated in the House in 2022.

We also welcome the introduction of the Online Procedure Rules Committee. It can only be helpful to have a specialist committee to establish rules for online procedures across several fields. There will be scope for cross-fertilisation between different areas utilising the various digital skills that are available for the development of sets of rules in different fields, and that can only be of considerable advantage.

Civil Proceedings and Magistrates’ Courts Fees (Amendment) Order 2025

Lord Marks of Henley-on-Thames Excerpts

Monday 17th March 2025 Grand Committee

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

My Lords, once again I am grateful to the Minister for his introduction to this instrument. It is difficult to say much about this amendment order in that, as he pointed out, it does not alter the existing fees at all, as far as I can see. Also, the possibility of enhanced fees is restated in relation to the fees covered by the order, there already having been that possibility in legislation.

Having read the Explanatory Memorandum and listened to the Minister’s introduction, it appears that the level would have gone down on the introduction of what I think he called the new methodology, which I thought was an attractive word in relation to this instrument. In the interests of transparency, it would be interesting if he could say how much lower the fees would have been on the introduction of the new methodology had this instrument not been brought into effect.

In general, we are of the view that the level of court fees should be assessed by reference to the recovery of the costs of administration, rather than being treated as a kind of profit centre for either the department or the Courts & Tribunals Service. Therefore, we do not see it as sensible to set fees at a level that produces a substantial profit for the administration, although I can see an argument for the cross-subsidisation that the Minister mentioned where there are other areas that are loss-making for the Courts & Tribunals Service which are covered by some excess income on some of these very high-volume fees. I do not suppose that anybody will be too worried about the commission-type fee for the sale of goods and shipping.

We simply state that, in general, there should be a good reason for enhanced fees, which I think is a principle that the department accepts. We accept that some fees will exceed the costs of administration, but that needs to be justified. We do not see the fees charged by courts as an appropriate way of raising extra funds for the public purse.

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for his comments, and I agree with the way he set out the objectives of raising fees. It is not the objective to make a profit on them. The vast bulk of fees are set at a level to recover their administrative cost. However, occasionally there are these enhanced fees. For reasons which the noble Lord will understand, there is some limited extent of cross-subsidisation for certain fees which are set much lower or at zero. But the general principle is that the fees should cover the cost of the application itself.

The noble Lord asked what the fees would be if this order was not in place. In the case of the council tax liability order, the fee is being maintained at 50p, but it would go down to 23p if this SI was not put in place. In the case of the warrants of entry, it is currently being maintained at £22 but would go down to £12.09, for the same reason. It is more difficult for me to give the equivalent value for the sale of ships or goods because it is a different calculation and I cannot give a single number to give a comparison. However, I hope that answers the noble Lord’s questions. I commend this order to the Committee.

Courts and Tribunals: Sitting Days

Lord Marks of Henley-on-Thames Excerpts

Tuesday 11th March 2025 Lords Chamber

[Lord Cameron of Lochiel (Con)]

My Lords, although I recognise and welcome some of the changes the Lord Chancellor has made in this Statement, they are far from sufficient in tackling the court backlog. It is of course tempting for any new Government to blame the outgoing Administration for all they possibly can. For that reason, I want to focus my remarks on what has happened since this Government took office in July last year.

On taking office, the Lord Chancellor was advised that at least 6,500 sitting days were available to tackle the growing court backlog—yet, instead of seizing that opportunity, the Lord Chancellor added only 500 sitting days, and still the backlog continued to expand. In response, the Lord Chancellor added a further 2,000 sitting days a month later, but by then the backlog had only worsened. Now, eight months after the Lord Chancellor assumed office, we learned last week that she is still rejecting available sitting days and, in a surprising admission, she conceded that the court backlog will only continue to grow. This is simply inexcusable.

The Lord Chancellor said that victims will receive quicker justice—yet victims of serious crimes such as rape are being told that their cases will not be heard until 2028. This is not just a matter of inconvenience or inefficiency; it is a failure to deliver the justice that victims deserve and expect. So it is critical that we act now, before the backlog expands further. It is vital that we fully maximise our court capacity, utilising every available day and exploring every possible avenue within the judiciary to relieve pressure and create additional capacity—there of course being a distinction between system capacity and judicial capacity.

I am confident that the Minister understands the importance of this. Cutting the court backlog will undoubtedly be a difficult task. However, it is essential that we have a clear plan and timetable for when this backlog will fall. So will the Minister tell the House by what date the Government expect the backlog to fall? Will he explain exactly why the Lord Chancellor did not, or will not, take up the 2,500 additional sitting days offered by the Lady Chief Justice? I look forward to hearing a clear and positive response.

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

My Lords, the Statement describes the Government’s inheritance from the last Administration on Crown Court capacity as little short of disgraceful. It was worse than that: it was an utter disgrace. Sadly, even with the measures announced in the Statement, an utter disgrace it remains. A once great system of criminal justice, admired internationally, has sunk to a level of service that has produced unpardonable delays; decrepit courts—and not enough of them; and underpaid and demoralised staff and lawyers. Offenders are in custody on remand for unacceptable periods and prosecutions are dropped on many occasions because victims and witnesses lose heart and abandon cases, lacking the confidence that they will ever see justice. When trials eventually happen, they are bedevilled by lapse of time and witnesses’ failing recollection. Overall, the level of public trust in our criminal justice system as a whole is rightly, abysmally low.

Furthermore, the system would be even worse were it not for the tireless commitment of those who work within it, mostly underrewarded staff, lawyers and, in particular, our committed, indefatigable and independent judiciary, who struggle to keep the courts working with some semblance of order against overwhelming odds.

This Statement represents a move in the right direction. To that extent, we welcome it, but it is not enough. The Secretary of State and Lord Chancellor recognise that. As the noble Lord, Lord Cameron, said, she has acknowledged that, even with the funding and measures she has announced, the backlog will grow. She pins her hopes on more radical measures of structural reform that may or may not be proposed by the Leveson review. These will take place only when the review has reported and its recommendations have been implemented. Far more extensive measures are needed now to bring down the backlog.

There is, after all, no significant saving of resources in keeping people hanging around for long periods—often running to years—with their lives largely on hold because we cannot get cases to trial. I do not question the Government’s recognition of the seriousness of the crisis they inherited and we now face, but I do question the lack of urgency.

I have a number of questions for the Minister. Why is it that, at a time of catastrophic shortage of sitting days, a progressive Government, dedicated to the delivery of justice, should simply accept that the concordat process of agreeing a number of court sitting days should be a negotiation between the Government and the judiciary? The Lady Chief Justice, a judge widely admired for her level-headedness and good judgment, sought agreement to an extra 6,500 days a year. She advised the Government that that many extra days were available to address the court backlog of 73,000 cases within the system as it stands. Why have the Government not simply accepted that? Why have they not agreed to all the extra days for which she sought sanction and arranged to provide more? Those extra cases would make a significant difference.

In its report published last Wednesday 5 March, the House of Commons Public Accounts Committee described the MoJ as

“tinkering at the edges, reacting to each new issue that affects the courts, without planning for long-term solutions.”

How is it that the Government have not made swifter progress with initiating a comprehensive programme of necessary repairs to our courts? Of course, the increased funding for repairs is very welcome, but why is the urgency lacking? This was a known problem way before last July’s general election. Might some of the Nightingale courts not have been retained in use to clear part of the backlog? Have the Government considered evening and weekend sittings for uncontested cases, leaving more court days available for trials?

I know that the Government are well aware of the disproportionate effect of long delays on cases of rape and serious sexual violence. Victims withdraw from prosecutions under the psychological pressure that these cases entail. The average wait for serious sexual offence cases, not from report or charge but from arrival at Crown Court to completion, is now 356 days. This is a shocking figure. Many cases wait far longer. Have the Government considered according an enhanced status to these cases because of the particular difficulties they face in order to get them on more quickly?

We agree that there is a need for long-term reform and we trust that Sir Brian Leveson’s review will make recommendations that will help restore our criminal justice system. There is much that we can do now and I invite the Minister to take back to his department an invitation to the Government to do much more, more quickly.

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

My Lords, first, I welcome the noble Lord, Lord Cameron, to his current role. This is the first time I have encountered him speaking from the Dispatch Box.

The Government inherited a record and rising backlog that now stands at 73,000 cases—twice the figure of five years ago. As the noble Lord, Lord Marks, said, there is a human cost to these delays. Victims are waiting years for justice and the attrition rate in rape cases has more than doubled in the last five years, from 2.9% in 2019 to 7.5% now—so I recognise the figures he quoted. This Government are funding a record allocation of Crown Court sitting days to deliver swifter justice for victims—110,000 sitting days next year, which is 4,000 more than the last Government funded.

The noble Lord, Lord Cameron, asked me a number of questions. Basically, the question was why we were not maximising the number of sitting days and taking up the Lady Chief Justice’s offer, as he put it, of sitting at capacity in the Crown Court system. There are two simple answers to that. One is a cash constraint—and I think we need to acknowledge that the Lord Chancellor has wider responsibilities than the courts and has to balance how the money is spent on the whole criminal justice system. We acknowledge that there are serious issues, and we have increased the number of sitting days. The second point is that it is wise to keep some headroom within the Crown Court system. We saw the benefit of that when we had the riots last year and were able to deal with them really quite quickly, in part because of the policy of keeping some headroom within the Crown Court system.

The noble Lord, Lord Marks, rightly said that trials are bedevilled by delays, and he was right when he said that victims drop out of the system and there are many problems because of the many delays within our system. The noble Lord mentioned the concordat process. It is worth noting that that process has been accelerated this year; it has been resolved much earlier in the year than in many previous years, which will give more certainty to the judges when they are planning and allocating their sitting days between the various courts. That is the benefit of the system that the Lord Chancellor has introduced.

I reject the charge that we are tinkering at the edges. The fundamental point, which I think the noble Lords, Lord Marks and Lord Cameron, acknowledged, is that ever-increasing sitting days will not solve the problem. We need more radical reforms, and we are looking to Sir Brian Leveson to present reforms. A number of things are being constantly talked about in the papers. We do not know exactly what he is going to recommend, but we are absolutely clear that there needs to be a much more radical change in how we deal with trials in the magistrates’ courts and Crown Courts. We have obviously gone some way within the magistrates’ courts by doubling magistrates’ sentencing powers to 12 months—but, again, that is a marginal benefit, and there need to be other changes. We are looking forward to Sir Brian’s recommendations.

The noble Lord, Lord Marks, spoke about repairs to the courts. As I think he acknowledged, there has been an increase in court maintenance, up to £148 million from £120 million—but of course we are trying to catch up on many years of underinvesting in our court estate. I have personally seen a number of courts that are in dire need of emergency maintenance. I acknowledge the point that the noble Lord made, but we are taking steps in the right direction to try to increase the quality of our court estate—and there are a number of Nightingale courts still operating, partly for that reason.

The noble Lord, Lord Marks, made another point about the sexual offences or RASSO cases, and how people are waiting far too long. Some courts, including Bristol Crown Court, I believe, are using a different approach—I hesitate to use the word “specialist”—to how they bring on RASSO-related cases. I believe that a couple of other Crown Courts are looking at this as well. Nevertheless, I acknowledge the point that the noble Lord made about the importance of doing this—otherwise, you will get a higher victim drop-out, which is not in the interests of justice.

Asylum Seekers: Legal Aid

Lord Marks of Henley-on-Thames Excerpts

Thursday 23rd January 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I thank my noble friend for giving me notice of his question and I will write to him. I hear similar questions in my other private life, and I will ensure that a proper answer is provided to my noble friend’s question.

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

My Lords, most research suggests that about 60% of eligible asylum seekers cannot find a legal aid lawyer. The announced increase in legal aid rates should help but will not deal with the advice deserts across the country. Given the language difficulties and the complexity of these cases, online remote lawyers cannot cover the deficit. How will the Government encourage more solicitors to take on this work, and does the Minister agree that the review of civil legal aid has already demonstrated that urgently reducing the bureaucracy and complexity of legal aid contracting is at least part of the answer?

Courts: Backlogs

Lord Marks of Henley-on-Thames Excerpts

Wednesday 15th January 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

Yes, I agree with my noble friend that justice delayed is justice denied, and I agree with the sentiments she expressed in her question. But that is the argument for bold and ambitious reform—and we very much hope and expect that that is what Sir Brian will deliver. The review will consider the merits of longer-term reform, as well as court efficiency. Sir Brian will consider court reform options that would reduce demand on the Crown Court, including reclassification of offences, consideration of magistrates’ sentencing powers and the introduction of an intermediate court. The review will provide findings on court reform by spring this year, and its findings on efficiency will come forward by autumn this year.

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

My Lords, will this Government distance themselves from the Conservatives, who blamed the backlogs on Covid and on criminal barristers, who had no option but to strike to secure proper remuneration? Will the Minister tell the House what immediate steps they propose to address the real causes of these record backlogs, which delay trials and frustrate justice—in particular, too few judges, lawyers and court staff; a wrong-headed cap on court sitting days, severely criticised by the Lady Chief Justice, which has led to unplanned courtroom closures; and trials adjourned through listing and prisoner transport mistakes?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the two factors to which the noble Lord referred are real factors—Covid and the action by barristers. However, there is an underlying problem of increasing cases coming to Crown Court, which overlays the other problems to which the noble Lord referred. The Government have increased the number of allocated sitting days to 108,500, the highest level in almost a decade, and increased the sentencing powers of magistrates’ courts from six months to 12 months. Nevertheless, with those two increases, there needs to be further radical reform to address the problem to which the noble Lord referred.

Home Detention Curfew and Requisite and Minimum Custodial Periods (Amendment) Order 2024

Lord Marks of Henley-on-Thames Excerpts

Tuesday 10th December 2024 Lords Chamber

[Baroness Newlove (Con)]

My Lords, both as Victims’ Commissioner and a victim going through the criminal justice system, I was horrified to read the NAO report published week which assessed government plans to expand the prison population. The report told us that on current forecasts the population would exceed prison capacity by 12,400 by the end of 2027. It is impossible to see how this can be absorbed by any building programme, let alone one that can be completed in just three years. It leaves the Government in an impossible position of having to explore all alternatives and it is against this backdrop that we find ourselves here today.

I am told that the home detention curfew scheme is hugely effective. Other than in the context of reducing the prison population, I am not sure how this statement can be made. As far as I am aware, there has been no recent evaluation of the scheme, but I would be interested to hear on this point from the Minister. Prison governors are responsible for selecting offenders who are suitable for the scheme. It is to their credit that compliance levels are relatively high. However, can we really be confident that current compliance levels will remain if the scheme is, in effect, doubled in length? Again, I would be interested to hear the Minister’s view.

It will come as no surprise when I say I come to this debate from the perspective of the victim. As I have said before, most victims seek justice, not vengeance. On hearing a sentence being delivered, the victims expect the sentence handed down to be served in full. This is not unreasonable; surely it is what we mean by justice. Victims listen to the remand time that has been deducted from the sentence; they know that part of the sentence will be served on licence, but they struggle to accept a prison sentence being reduced—by up to 12 months—through one or other early release scheme simply to reduce prison population pressures.

I fear that retrospective pruning of sentences by all successive Governments over the years has had a corrosive effect on public confidence in our justice system. How can you trust a justice system if all Governments keep moving the goal posts? It also adds an extra layer of complexity on sentencing and, heaven knows, sentencing is already complicated in the first place.

I make a plea to this Government and future Governments: let this be the very last time we have to extend an early release scheme to bail us out of another prison crisis. We need a sustainable sentencing regime where the sentence handed down is the same as that victims hear and the same as that the offender will serve, and we need a prison system that has the resilience and the means to meet the challenge.

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

My Lords, we support the principle of this order and I thank the noble Lord, Lord Ponsonby, for his helpful introduction and explanation of it. He acknowledged, indeed asserted, that the background to the measure is the capacity crisis of which we have spoken over a number of years under the previous Government. This order is, in essence, the amendment of an emergency measure taken in the face of extreme pressure on the Government as the space in prisons simply ran out.

We recognise the need to extend the time, in the face of the continuing crisis, that may be spent on home detention curfew or HDC. It is significant that the reoffending rates among HDC prisoners are lower than those among the prison population at large on release. We also recognise that, for the technical reasons that the noble Lord has outlined, there need to be changes to the range of offences where eligibility for release under SDS40 is established.

As prisoner numbers have risen, with longer sentences resulting from sentence inflation, from legislation introducing longer sentences and legislation imposing longer periods which have to be served in custody as a proportion of the whole sentence, we have to look at how we deal with this crisis in the future.

While we support the principle of this order and the orders that have preceded it, I will ask the Minister for assurances in two specific areas before making a number of general points. First, it is an essential part of the early release scheme that offenders be tagged and that, when tagged, they are properly monitored within the community. Many were alarmed by the number of reports at the beginning of this scheme of offenders being released without tags. The noble Lord, Lord Timpson, described that as “completely unacceptable”, and we agree. It would be helpful to hear from the Minister details of steps the Government have taken to ensure that nothing like that can happen again. It would also be helpful to hear further details of how well the steps taken to monitor prisoners who are tagged on release are working in practice.