Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Sandhurst Excerpts

Committee stage
Monday 19th May 2025 Grand Committee

Speaking for myself, I would have no idea of the dynamics at work within that family. When I see a Bill which suggests that a pre-sentence report, which is desperately needed in a case like that, should omit race, religion and cultural background—the fact the poor girl could not speak English and so on—it seems absolutely disgraceful. I support all the amendments that have been spoken to in this group.

[Lord Sandhurst (Con)]

My Lords, I did not speak at Second Reading and for that I apologise. On this side of the Committee, we support the direction of travel of this Bill. We agree and endorse the principle that all those before the criminal courts should be treated equally and without special treatment. We have heard, however, compelling arguments from the noble and learned Lord, Lord Burnett, and other speakers about the difficulties with the drafting of this Bill and the way it is framed.

What I will say about the amendments is on the basis that, while we support the purpose of the Bill and in particular stand by our amendments in the third group—we believe they will bring to Parliament its proper role when it comes to guidelines—we see that there are issues with the terms to which these amendments are directed. Having said that, I can deal quite quickly with the amendments, without any disrespect to those who have spoken in support of them.

We believe that Amendment 1, from the noble Baroness, Lady Chakrabarti, would detract from the Bill. We refer to our amendments in the third group and say that what is contained there would enable Parliament to address the points the noble Baroness made in practice. Similar arguments apply to Amendment 3, tabled by the noble Baroness, Lady Hamwee. We do not favour this amendment and believe it goes too far in reversing the purpose of the Bill. We listened with great respect, as I have already said, to the arguments advanced by the noble and learned Lord, Lord Burnett, which we think have great force. We can see that there could be unforeseen and unintended—perhaps they are foreseen, but they are certainly unintended—adverse consequences. With this and the other amendments, we await with interest what the Minister has to say in reply.

We would make similar observations in respect of Amendment 4, from the noble Lord, Lord Marks, and Amendment 5, which we believe, to the extent that it adds to the Bill, detracts from its message and is a move in the wrong direction. On Amendment 6, again from the noble Lord, Lord Marks, we advance the same reasons as we have done in respect of the other amendments, and his Amendment 4.

On Amendments 11 and 12, we have nothing to add to what I have said before, but we believe that the Government must address the arguments advanced to ensure that the Bill is clearly drawn and does not have unintended adverse consequences that simply make the situation worse. We invite the Government to look carefully at this and, indeed, the aims of Amendments 12 and 13, although we believe that the Bill is right to focus in the direction that it does.

The noble Lord, Lord Beith, and the right reverend Prelate the Bishop of Gloucester also raised important specific points in relation to specific matters. Again, we will be interested to hear what the Minister has to say, but we see merit in the view expressed by the Constitution Committee, not in respect to those amendments in particular but, of course, in relation to other amendments. That is all that I propose to say at this stage in respect of this group.

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

I thank noble Lords for the careful consideration that they have clearly given the Bill, and I hope that I can reassure them on many, if not all, the points made. I also appreciate their kindness to me in their wise assumption that I am in the presence of some of the world’s experts on this subject, and I am not one of them—but I hope that I address all the points that noble Lords have raised.

I say to the noble Baroness, Lady Bakewell, that I am very grateful to her for the work that she does in supporting Gypsy, Roma and Traveller communities, and I am happy to continue to engage with her on that subject. I have already had a meeting with the group as well.

In bringing forward the Bill, the Government are seeking to ensure that the sentencing guidelines do not lead to differential treatment before the law. To do that, the Bill prevents relevant guidelines about pre-sentence reports from referring to offenders’ different personal characteristics. A non-exhaustive list of illustrative examples of personal characteristics is included in the Bill, including race, religion or belief or cultural background. This list was developed with reference to the content of the Sentencing Council’s revised imposition guideline.

Before I set out the Government’s position, I thank the noble and learned Lord, Lord Burnett, for his contribution to this debate, which I will ask the team to consider fully ahead of Report.

Amendments 1, 11 and 13, tabled by the noble Baroness, Lady Chakrabarti, would replace reference to “personal characteristics” in Clause 1 with reference to “protected characteristics” in the Equality Act 2010. We have considered the proposed change to the wording carefully and, while we understand the logic behind referring to the set of protected characteristics provided for in the Equality Act, I am not persuaded that this would meet the Government’s policy objective.

The revised imposition guideline refers to members of a “cultural minority” within its list of cohorts for which a pre-sentence report would “normally be considered necessary”. As cultural background is not a protected characteristic provided for in the Equality Act, if the Bill was to be amended in the way proposed, the council would be free to provide within its guidelines that cultural minorities received preferential access to pre-sentence reports, in turn risking differential treatment before the law. The use of the broader term “personal characteristics” in the Bill ensures that our policy intent is met and that all the issues raised by the imposition guideline are appropriately addressed. I am happy to carry on the conversation with my noble friend and look forward to our meeting later this week. I therefore urge her not to press her amendment.

Amendment 3 in the name of the noble Baroness, Lady Hamwee, would remove the Bill’s current blanket restriction on sentencing guidelines about pre-sentence reports from referring to offender’s different personal characteristics. Instead, the amendment would require sentencing guidelines to include references to personal characteristics when they are also considered to be related to an offender’s personal circumstances. I am mindful that there has already been extensive debate in this House and in the other place about the Government’s use of the term “personal characteristics”, but I hope that it may nevertheless be helpful if I briefly summarise the Government’s approach.

The Government acknowledge that the concept of “personal characteristics” is a broad and flexible one that is not intended to have an exhaustive definition. However, to put it simply, personal characteristics refer to who or what someone is. They are things that one cannot, or should not, be expected to change; the Bill sets out some illustrative examples such as race, religion or belief, and cultural background. On the other hand, personal circumstances are more temporary and contingent. They are more about what someone is doing, what they have done or what has been done to them.

The Government completely accept that the line between characteristics and circumstances may not always be clear and that some attributes, such as pregnancy, could reasonably be described as both a characteristic and a circumstance. Ultimately, however, I must stress that the Government’s objective in bringing the Bill forward is to ensure equality before the law by preventing the Sentencing Council making guidelines that risk differential access to pre-sentence reports. The Government remain of the view that the reference to “personal characteristics” in the Bill is the most robust way of meeting this objective; I therefore urge the noble Baroness to withdraw her amendment.

Amendments 4 and 6, tabled by the noble Lord, Lord Marks, would loosen the Bill’s restriction on sentencing guidelines about pre-sentence reports referring to offenders’ differential personal characteristics. It would do this by allowing sentencing guidelines to include such references where the Sentencing Council considers that this would prevent inequalities in sentencing outcomes. Although the amendments are well intentioned—I fully agree with the noble Lord on the importance of doing what we, as parliamentarians, can to tackle inequalities in outcomes across the justice system—we are not persuaded that these amendments are appropriate, for two key reasons.

First, they risk undermining the Bill’s fundamental objective of ensuring equality before the law by ensuring that sentencing guidelines do not include any provision that risks differential access to pre-sentence reports. Secondly, the Government remain of the firm view that it is for Ministers and Parliament, rather than the Sentencing Council, to consider how best to tackle disproportionate outcomes across the criminal justice system; it is not something that we should seek to address using differential treatment before the law during sentencing.

I thank the noble Lord, Lord Dholakia, for his speech highlighting the issues around racial bias and disproportionality in the justice system. We recognise the issues that he spoke about, but, as I have said, we believe that these are matters for policy, not the Sentencing Council, to address.

As I mentioned at Second Reading, work is continuing at pace on the review commissioned by the Lord Chancellor of the data held by the Ministry of Justice on disparities in the criminal justice system. This will be key in helping decide what we must do to address disparities; the House will be updated in due course. I hope that this reassures the noble Lord, Lord Marks, that this is an issue the Government take incredibly seriously and are determined to address, and that he will agree not to press his amendments.

I acknowledge the wider comments from the noble Lord, Lord Marks, about the need for legislation, including whether we could postpone this legislation until after David Gauke has published his review. I remind the Committee of the timelines. The guidelines were due to come into effect on 1 April. We sought to address this issue via constructive conversation with the Sentencing Council. As the Sentencing Council did not agree to change the guidelines, we introduced legislation to address the specific concerns that we had around equality before the law. That is why we had to act in the way we have: with primary legislation.

Amendment 5, tabled by the noble Baroness, Lady Chakrabarti, would provide a list of non-exhaustive examples of instances where sentencing guidelines could recommend that sentencers consider requesting pre-sentence reports. Although we have carefully considered the case for adding these criteria to the Bill, we are not persuaded that this is necessary, for two key reasons.

First, I re-emphasise that nothing in the Bill restricts sentencing guidelines from advising, in general terms, that a pre-sentence report should be sought where a further assessment of the offender’s personal circumstances would be beneficial to the court. Sentencers will therefore retain discretion to decide whether a pre-sentence report should be ordered, considering the specifics of the case before them.

Secondly, I am mindful that the revised imposition guideline already includes relevant provision that meets the spirit of this amendment, and it will be unaffected by the Bill. I agree with the Lord Chancellor’s remarks in the other place that the council “got things right” in the paragraph of the revised guideline that states:

“PSRs are necessary in all cases that would benefit from an assessment of one or more of the following: the offender’s dangerousness and risk of harm, the nature and causes of the offender’s behaviour, the offender’s personal circumstances and any factors that may be helpful to the court in considering the offender’s suitability for different sentences or requirements”.


I agree that PSRs should be used more widely. My work in supporting the Probation Service needs to go hand in hand with this ambition. I hope this reassures the noble Baroness and that she will not press her amendment.

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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.

[Lord Timpson (Lab)]

My Lords, I am grateful to have the opportunity to speak about probation and reducing reoffending—topics that are very important. I would like to use this opportunity to shine a light on the important work that probation practitioners do to support the sentencing process. I hope I can reassure noble Lords about the processes that are already in place.

I will speak first to Amendment 2, tabled by the noble Baroness, Lady Hamwee. This would require the Sentencing Council to include references to the factors most likely to reduce reoffending in its sentencing guidelines on pre-sentence reports. While I cannot support this amendment, as it would remove the Bill’s prohibition on sentencing guidelines on pre-sentence reports being framed with reference to offenders’ personal characteristics, I agree that the role of probation in supporting reducing reoffending is an important one.

The purpose of a pre-sentence report is defined by section 31 of the Sentencing Code as being a report which

“is made or submitted by an appropriate officer with a view to assisting the court in determining the most suitable method of dealing with an offender”.

A completed pre-sentence report will therefore provide sentencers with an effective assessment of risk, alongside targeted assessments of individuals’ needs, by confidently articulating suitable proposals that balance the needs of public protection, punishment and the rehabilitative aspects of sentencing.

Depending on the specific circumstances of the case, the probation practitioner writing the pre-sentence report will obtain information from both the defendant and external sources in respect of mental health, drug and alcohol needs and services, accommodation, finances and youth justice contact, as well as consideration of wider circumstances that could be indicative of additional vulnerability or complexity for the defendant.

A pre-sentence report will always include an assessment of the risk the defendant poses and to whom, including the risk of serious harm and likelihood of reoffending analysis. In making the sentencing recommendation, the pre-sentence report’s author must also consider the purposes of sentencing under the Sentencing Code, including the reduction of crime, and reform and rehabilitation.

The Probation Service has always had to balance public protection with rehabilitation, and striking the right balance is a long-standing part of the culture of the service, which is reinforced by the messages and expectations set not just by senior operational leaders but by me and other Ministers. I hope I can therefore reassure the noble Baroness, Lady Hamwee, that rehabilitative principles have always been, and will continue to be, at the heart of the pre-sentence advice provided to courts, and that she will feel able to withdraw this amendment.

Amendment 7, tabled by the noble Lord, Lord Marks of Henley-on-Thames, proposes imposing a requirement on sentencing guidelines on pre-sentence reports to promote a greater use of such reports as part of sentencing. I share the noble Lord’s desire to see greater use of pre-sentence reports. As I have set out, a good PSR assesses the offender’s behaviour and the risks they pose, and recommends sentencing options tailored to those risks and needs. We know that the number of pre-sentence reports has declined, with a 44% reduction over the last decade.

There have been several reasons for this, but it may well be that judicial perceptions of probation’s capacity to deliver PSRs may influence that decision. Judicial confidence in probation is a key priority for me and for the Lord Chancellor, and I hope I can reassure noble Lords about the steps we are taking to maximise probation’s ability not just to deliver PSRs but to deliver them in a timely way and to a high quality.

First, we are continuing to invest in increasing staffing levels in probation. Last year, we recruited 1,000 new trainee probation officers, and this year we have raised that target to 1,300. That continued investment in staff is helping us fill vacancies, including in probation court teams, where last year we increased our target staffing levels.

Secondly, we are taking steps to increase the capacity of probation staff providing advice to courts. We are beginning to roll out a new digital service, prepare a case for sentence, that links to HMCTS systems and which means that listing information about upcoming cases comes straight to probation staff, rather than having to be looked up and rekeyed into the new system. This in turn will help probation court teams do the right preparation in advance, so they can identify cases in which a court is likely to need further information and have that ready on the day if the court requests a report.

We are also improving access to video-link facilities to promote greater use of remote interviewing, so that, where an offender is remanded in custody and the court adjourns for a pre-sentence report to be written, probation staff can easily carry out an interview to inform the report. Through measures such as these, we can better focus probation staff’s precious time on providing the court with the right information, rather than on chasing up data from partner agencies or having to react to court requests at short notice.

Thirdly, we are trying to maximise the different opportunities for courts to request pre-sentence reports. For example, the PSR before plea scheme allows for a pre-sentence report to be written early on in certain cases where there is an anticipated guilty plea, and it is likely that the defendant will be sentenced in the magistrates’ court.

I hope I have reassured the noble Lord about the Government’s commitment to increasing probation’s ability to provide the best possible advice to courts, and that he will be happy as a result not to press his amendment.

Amendment 8 is intended to prevent sentencing guidelines restricting the contents of a pre-sentence report or interfering with a court order. I take this opportunity to briefly reassure the noble Baroness, Lady Hamwee, that nothing in the Bill as currently drafted, nor sentencing guidelines themselves, will do this. Following the Bill’s passage, sentencers will retain their current discretion to decide whether to order a pre-sentence report in appropriate cases. All the Bill does is ensure that the content of sentencing guidelines about pre-sentence reports does not provide for differential access to pre-sentence reports for certain groups over others.

The Bill also does not impact the types of sentencing options available to the court. Sentencers will retain their discretion to impose the sentence that they consider most appropriate, based on the specifics of the individual case before them and in line with any relevant sentencing guidelines. I hope that the noble Baroness is reassured and that she will not press her amendment.

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Moved by

[Lord Sandhurst]

9: Clause 1, page 1, line 7, at end insert—
“(4B) Sentencing guidelines about pre-sentence reports must be submitted to the Secretary of State by the Council and the Secretary of State must give effect to those guidelines by regulations.”

[Lord Sandhurst (Con)]

My Lords, I shall be a bit longer on this amendment than I have been hitherto. I shall speak to Amendments 10 and 17 while moving Amendment 9, which are in my name and that of my noble friend Lord Wolfson of Tredegar.

The draft guidelines produced by the Sentencing Council could have led to an unacceptable two-tier justice system in which defendants were treated differently on the basis not of their crimes but of their racial, cultural or religious identity. Undoubtedly, this state of affairs has been damaging to public confidence in the justice system. Unfortunately, this Bill does little to address the underlying issues. It only partly addresses the problem, leaving many concerns unresolved, and it risks creating new problems down the line.

This Bill would prevent sentencing guidelines referring to personal characteristics when a court is considering whether a pre-sentence report should be requested. However, it only resolves the issue presented by these particular guidelines and does not provide Parliament with the power by regulations to amend or reject guidelines more generally, failing to prevent this or a similar situation occurring again.

The Bill is a necessary but not sufficient or adequate step in ensuring equality before the law. While a step in the right direction, it does not offer a comprehensive solution, and the amendments that we advance look to rectify this flaw. These amendments would ensure that in future sentencing guidelines on pre-sentence reports cannot simply be issued by the Sentencing Council without democratic oversight. They would require that guidelines on pre-sentence reports drafted by the council must be subject to an affirmative resolution in both Houses before they come into force as definitive guidelines. We submit that that is a basic safeguard of democratic accountability, ensuring parliamentary oversight on sensitive sentencing matters.

Without these amendments, history may repeat itself. The same council will be free to bring forward, as it wishes, ideological frameworks that Ministers will be powerless to stop before the damage is done. Had these guidelines gone unchallenged, we would now have sentencing based on identity politics, undermining public confidence in the system. Taken together, Amendments 9,10 and 17 would create an important safeguard, ensuring that no future set of guidelines in this field, at least, could bypass sufficient parliamentary scrutiny and oversight. We commend them to the House.

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[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.

[Lord Sandhurst (Con)]

My Lords, I thank all noble Lords who have contributed to this important debate. The concerns raised today underline the vital necessity of ensuring that our justice system remains fair, impartial and subject to proper democratic accountability.

The three amendments we have just been considering seek to address what we see as a flaw in the current system: the lack of meaningful parliamentary scrutiny over sentencing guidelines that have profound implications for equality before the law. The draft guidelines produced by the Sentencing Council risked entrenching a two-tier justice system. They would have treated defendants differently based on identity rather than the merits of their case; that was unacceptable. Without these amendments, it could happen again.

I am grateful for the excursus given on the consultation process in particular by the noble and learned Lord, Lord Burnett, which was interesting and helpful. However, government must be looking forward to how we manage this process in the future, so that Parliament, if appropriate—and we believe necessary—has the last word on the sentencing guidelines. They are in part for the judges, when they have to give practical effect to what is set out in them, but the fact that the council is an independent body and consults quite widely before the guidelines are promulgated should not mean that Parliament cannot have a look at them and then step in if it believes it appropriate. That is not to tread on the constitutional independence of the courts, because it will be before any sentences are pronounced under the guidelines. It will be just a step in the process, and they will then go to the courts for implementation.

We invite the Government to look at the approach we have advanced, even if the drafting may be imperfect as it stands. The principle at stake is simple: sentencing policy is too important to be left entirely to unelected bodies. Parliament must have the final say on matters that affect the foundational principle of equality under the law. These amendments have the aim of ensuring that, at the very least, guidelines on pre-sentence reports could not come into force without the explicit approval of both Houses. That is not an unreasonable burden; it is a basic safeguard of democratic accountability.

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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.

Ex-offenders: Reintegration

Lord Sandhurst Excerpts

Thursday 15th May 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

Yes, I absolutely understand the point that the noble Lord, Lord Fox, is making. Last year, the Government recruited 1,000 new probation officers; in the current year, we aim to recruit 1,300 officers and my understanding is that we are on target to achieve that. Of course, it takes two or three years to train probation officers so that they can get the relevant experience and confidence, and that process is ongoing. We absolutely want to revitalise the Probation Service. That is absolutely central to our ambitions for greater use of community sentences in future.

[Lord Sandhurst (Con)]

My Lords, the most recent Probation Service data showed that around 40% of homeless ex-prisoners reoffend within a year, compared with 19% of those with stable housing. Can the Minister please explain, first, what data-driven adjustments are being made to improve outcomes for ex-prisoners, and, secondly, how the Government intend to track the success of reintegration programmes and collate the data?

[Lord Ponsonby of Shulbrede (Lab)]

The noble Lord asks an important question and the answer lies in housing and accommodation. At the moment, there are three tiers of possible housing options available to prisoners. Community accommodation services are in either tier 1, 2 or 3. The key to resolving the issue is to get prisoners into one of those tiers of accommodation and then moving out of it as appropriate and, in the case of the third tier, after 12 weeks. Of course, moving out into settled accommodation requires the availability of that accommodation, and that availability varies across the country. Many other parts of society are competing for that accommodation. So we are very aware of the point that the noble Lord has made and the Government are doing their best to address restrictions on the housing that will support offenders when they leave prison.

Protection of Prison Staff

Lord Sandhurst Excerpts

Tuesday 13th May 2025 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, on 3 April, the Times reported that Islamist gangs had created gross dysfunction in HMP Frankland, in which a large number of convicted terrorists are held. Just nine days later, on 12 April, Abedi, the Manchester bomber, detained in the same Frankland prison, threw hot oil over a prison officer. Then, on 8 May, Rudakubana, the Southport killer, detained in HMP Belmarsh, threw boiling water over an officer there. Both those terrible attacks were by radical Islamists, in category A prisons. What steps will be taken to isolate such prisoners from access to such dangerous substances? Will tasers be issued in category A prisons, and when will stab vests be provided?

[Lord German (LD)]

My Lords, with a prison population at 98.9% of capacity last month, a 19% increase in the number of assaults on prison officers in the last year and a shortage of prison officers, that is a bagful of problems for the Minister. Does he have an emergency plan for these problems, and what will he do to ensure that our prison officers are safe and that there is a sufficient number of them?

Police, Prison and Probation Officers

Lord Sandhurst Excerpts

Tuesday 13th May 2025 Lords Chamber

[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.

[Lord Sandhurst (Con)]

My Lords, the Ministry of Justice reported a 12.5% leaving rate among band 3 to 5 prison officers for the year ending December 2024. Considering that the number of new recruits decreased by 35.4% during the same period, will the Minister explain what practical steps the Government are taking to improve both recruitment and retention among prison officers?

[Lord Timpson (Lab)]

The latest figures are that we have 97% of the number of staff we need in our prisons, but clearly we still have a bit to go. Also, a number of those staff are yet to be fully trained and in the right place. Before I was asked to come and do this role, I did a full review into the training of prison officers. I am fortunate that it is more likely to happen now I am in this role, because training is a big part of the reason why some of our staff leave too early. We want to make sure that people build their whole careers in the Prison Service, because the skills they learn—those soft skills about how they speak to prisoners and offenders—really make the difference in helping turn someone’s life around.

Property (Digital Assets etc) Bill [HL]

Lord Sandhurst Excerpts

3rd reading
Thursday 8th May 2025 Lords Chamber

[Lord Holmes of Richmond (Con)]

My Lords, it is a pleasure to follow my friend, the noble Lord, Lord Clement-Jones. In doing so, I declare my technology interests as set out in the register. Like other noble Lords, I have, rightfully, a long list of thanks, not least to all those witnesses who gave oral and written evidence to our Special Bill Committee; to Matthew Burton, our clerk, and all his team; to the Minister for his careful and thoughtful engagement, and all his officials; and not least to the noble Lord, Lord Anderson, for his excellent chairing of our Special Bill Committee.

This is a short Bill, but one with significant impact for the UK, and indeed beyond our shores, because through our legislative process, the world is watching what we do in this space. We have a great fintech tradition in this country, a great fintech ecosystem, and whether it is financial market infrastructure, dematerialisation of our capital markets or crucially important financial inclusion, digital assets have a critical role to play. With some trillions of the UK and world economy due to be transacted by digital assets by the end of this decade, the UK needs to ensure that it is well set for this future. The Bill does this through non-prescription, but using the great good fortune of English and Welsh common law, with its agility and its adaptability, as the Minister rightly said, for new technologies not yet even imagined.

It was an extraordinary pleasure to be part of this legislative process. My only question for the Minister is whether there is a schedule yet in the other place, so we can ensure that Bill becomes law as soon as possible. Not only does it send a signal to the world; it sends a signal to all those involved in digital assets in this country that with the financial centre of London and our fantastic fintech start-ups, scale-ups and larger businesses, London and the United Kingdom is an excellent place to be involved in digital assets business.

[Lord Sandhurst (Con)]

My Lords, this was indeed a fascinating Committee in which to participate. I have no doubt that this effectively one-clause Bill will make an important contribution to the development of the law in a fast-developing field and assist judges and litigants in ensuring that necessary protection is given to activities and things in the digital sphere—including those as yet unimagined—which might otherwise fail to be protected. It is important for fintech, as we have heard, and it is very important for the City of London in retaining its place in the financial world in which we live.

The evidence we heard from interested parties, not just lawyers, raised a body of issues which took some digesting, and my noble friend Lord Holmes raised important questions. However, under the clear and thoughtful guidance of our distinguished chair, the noble Lord, Lord Anderson of Ipswich, we found, with little disagreement, that—apart from a small change to the Bill’s title—we should leave it well alone. The Law Commission is to be congratulated on its hard work and on reducing a vast body of material to this very crisp Bill. We found it small but perfectly formed.

In all this process, we had the inestimable help of the committee clerk, Matthew Burton, to whom I am most grateful, not least for his excellent summary of the evidence and issues to help our final deliberations. It is with no hesitation that we on this side commend this Bill and hope it will be passed swiftly.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I am glad that the Bill has the support of all noble Lords who have spoken. I note that three Whips are sitting in my presence, and I am sure they will have heard the comment from the noble Lord, Lord Anderson, on the lack of female members of the committee and will see whether we can do better next time. I will write to the noble Lord, Lord Clement-Jones, on his questions, as I am unable to answer them right now. The noble Lord, Lord Holmes, asked about the schedule. I also cannot answer that question, but I suspect it will go down very soon. If there is any update, I will provide it to him.

I conclude in the spirit of agreement and endorse the point made by the noble Lord, Lord Sandhurst, that this is a small but perfectly formed Bill, but it will have one hell of an impact. We want to make sure that it makes the best possible impact. I beg to move.

Criminal Cases Review Commission

Lord Sandhurst Excerpts

Wednesday 7th May 2025 Lords Chamber

[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.

[Lord Sandhurst (Con)]

My Lords, following on from the sixth recommendation—recommendation F—of Chris Henley’s report of July of last year, what steps is the commission taking in particular to track and revisit unsuccessful forensic inquiries, including tests which do not produce profiles or produce only partial and incomplete profiles, which produce complete profiles that do not produce a match, or which produce developments in areas other than DNA? Is the commission now acting on advice from the national DNA database? I appreciate these are detailed questions. If the Minister cannot answer today, will he please write to me and place a copy in the Library?

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for the question. I think I am right in saying that there has been additional money put into the forensic side of the work done by the CCRC. If there is additional information which I need to impart to the House or to the noble Lord, I will put that in a letter.

Whiplash Injury (Amendment) Regulations 2025

Lord Sandhurst Excerpts

Tuesday 6th May 2025 Grand Committee

[Lord Jones (Lab)]

My Lords, it is good to follow the noble Lord, Lord Marks, and his committed statement. I thank the Minister for his helpful and thoughtful introduction.

I rise on the principle that the Executive should be held to account—in this instance briefly and positively—and to acknowledge that it is traditional to get orders and regulations through in the way we do, week in, week out in your Lordships’ House. The usual channels usually get it right, but so often our regulations and orders affect thousands or millions of people. Perhaps more of them should have been debated more closely, sometimes even in the Chamber.

However, having read the declaration in the informative Explanatory Memorandum, who would wish to challenge these regulations? The Minister in another place is a KC, and we have the deputy director for civil justice and law policy at the Ministry of Justice, and the most persuasive and courteous of Ministers in your Lordships’ House—and the instrument is laid by command of His Majesty.

I support and welcome the regulations, which offer increased amounts. This and only this differentiates them from the 2021 regulations. The legal framework has not changed. If lower premiums follow, so much the better, but one notes that premiums are imposed by the insurance industry, which does not always deliver on what it infers should be the case.

Can the Minister indicate how many whiplash cases entered our courts in, say, 2022 and 2023? That response may come later, rather than here and now, but can he reference in it the numbers for Wales, as well as those for England? Does the department have any rough estimate—for that is all it can be—of the percentage of likely fraudulent and contrived cases that enter our courts?

[Lord Sandhurst (Con)]

My Lords, as the Minister outlined, these regulations follow the Government’s statutory review of the Whiplash Injury Regulations 2021. The proposed amendments would increase compensation for whiplash injuries occurring on or after 31 May 2025 from 14% to 15% across all tariff bands. This increase is intended, as we have heard, to reflect inflation since the original tariffs were introduced. It includes a forecasted buffer to cover inflation over the next three years.

The whiplash tariff system introduced by the previous Conservative Administration was aimed at reducing the number and cost of minor injury claims and lowering motor insurance premiums. It introduced fixed compensation levels for whiplash injuries sustained in road traffic accidents and moved away from case-by-case judicial assessment. The structure of the tariff is not altered by this instrument; what changes is the monetary value assigned to each tariff band. The uplift of 15% is designed to reflect inflation since 2021; it includes a buffer to account for expected inflation until the next statutory review, scheduled for 2027.

In principle, we support this change. It is reasonable that compensation should keep pace with the cost of living. We also welcome the Ministry of Justice’s stated intention to work with MedCo to improve the quality and consistency of medical reporting. Reliable, clear medical evidence is essential to the fair operation of this system, but we have some questions and concerns.

This instrument introduces a significant and untested change in how compensation levels are set. Rather than updating tariff figures in legislation, as had been the practice, this uplift includes a forward-looking inflation buffer based on economic forecasts. As the Secondary Legislation Scrutiny Committee pointed out, this is without precedent: no other statutory compensation scheme relies on forecasted inflation in this way. Forecasts, as we know, are often subject to revision and uncertainty. There is a real risk that this buffer may underestimate actual inflation, leaving claimants undercompensated over time. I would therefore be grateful if the Minister could provide clarity on this point. What assurances can be given that the inflation buffer will be accurate and what mechanism will be in place to ensure that claimants are not short-changed if those forecasts prove incorrect?

In addition, we are concerned about how the Government have represented feedback from their public consultation. The Secondary Legislation Scrutiny Committee made it clear that over 90% of respondents opposed the buffer model. That is not a mixed view, even if the reasons given differed; it is, in fact, an overwhelmingly critical view.

We also note continuing concerns raised by third parties. The Motor Accident Solicitors Society, for example, said that the tariff system and the official injury claims portal have damaged access to justice, particularly for those unfamiliar with legal processes or without representation. It also argues that the original tariff amounts were too low—significantly lower than those typically awarded under Judicial College guidelines for comparable injuries outside a motor vehicle context. While this instrument focuses narrowly on adjusting tariff levels, it is part of a much wider macro-reform framework that remains highly contentious.

In conclusion, we support the uplift proposal in this instrument; ensuring that compensation keeps pace with inflation is necessary and fair. However, this policy cannot be left to run on autopilot. It must be subject to scrutiny, accountability and, where necessary, reform. We will support this instrument today, but we will continue to monitor closely whether the whiplash reforms are delivering on their promises of fairness, accessibility and justice.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords for their support for the measures in this statutory instrument. On the points which noble Lords have made, the noble Lord, Lord Marks, said he supported it, but he repeated his reservations, which he originally articulated in 2018. Just for the record, there is some judicial discretion. All tariff awards can be increased by up to 20% by the court in exceptional circumstances, so I take the noble Lord’s point but there is some judicial discretion in the level of the awards. He asked how much money has been saved. I cannot give him an answer in a figure. However, HM Treasury laid a report on this in Parliament on 27 March 2025. The report details a summary of the information provided by insurers, which have concluded that policyholders benefited from a reduction in insurance costs through paying lower premiums over the period 2020 to 2023. As it is factual reporting of the information from insurers to the Treasury via the Financial Conduct Authority, the report does not represent the Government’s findings or conclusions. Separate to this report, the Ministry of Justice will undertake a post-implementation review of the whiplash reforms later this year. I hope that last point goes some way to reassuring the noble Lord, Lord Sandhurst. We have no intention of running on autopilot, and all government policies are kept under review. It is certainly the intention in this case as well.

My noble friend Lord Jones was characteristically very generous in his assessment of the Government’s approach overall, so I thank him for that. Regarding the volume of claims in England and Wales, in 2022, there were 1,827, and in 2023 there were 9,335. I am afraid I do not have a breakdown of how much of that is in Wales alone. If I am able to get those figures, I will let him know. I also do not have a percentage for the likely fraudulent claims. Those numbers are not monitored as such because there are different types of fraud. Nevertheless, if there is any data that I can include in my letter to my noble friend, I will do so.

On the Explanatory Memorandum, the calls for evidence and the different views that the noble Lord, Lord Sandhurst, pointed to, more than 108,000 unrepresented claims have been created in the OIC portal since it since it was implemented. The proportion has increased from 9% in the first year to 12.7% as of 31 March 2025, so there is an increase in unrepresented claims, which we think is a good thing. In comparison, only 74 applications were made to the previous system by unrepresented claimants in 2021, so we think that the system is as a whole working well. Nevertheless, I do not want to give any hint of complacency. I undertake that we will continue to review the system and see that it continues to develop, as we hope it will.

Motion agreed.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Domestic Abuse) (Miscellaneous Amendments) Order 2025

Lord Sandhurst Excerpts

Tuesday 6th May 2025 Grand Committee

[Lord Sandhurst (Con)]

My Lords, I thank the Minister for introducing this important statutory instrument. We on these Benches support the intent behind these reforms. We welcome efforts to modernise legal aid and to ensure that vulnerable individuals are not excluded from justice due to arbitrary procedural barriers or outdated definitions in law. This order reflects and builds on developments introduced by the previous Conservative Administration, particularly through the Domestic Abuse Act 2021 and recent updates to the Home Office Immigration Rules, notably Appendix VDA.

The extension of the Appendix VDA route is particularly significant. For too long, victims of domestic abuse who have been abandoned overseas—often as a result of coercive and controlling behaviour—have found themselves in legal limbo, unable to return to the United Kingdom or access the support they need. This change will rightly bring such individuals within the scope of legal aid for applications for leave to enter or remain. Can the Minister explain how the Government intend to ensure that information about this change is made clearly available to those who may be eligible for support but who remain outside the United Kingdom? What steps will be taken to ensure that victims who are stranded abroad are not left unaware of their rights under this amended provision?

The order also introduces a practical and necessary change to evidential requirements for private family law legal aid applications. By allowing reports from appropriately qualified overseas professionals to be accepted as valid medical evidence, it recognises that victims may not always be in the United Kingdom when they seek help. This change will reduce avoidable delays and better support families in transnational situations, but I have two questions for the Minister in respect of evidence from overseas witnesses. What steps will be taken to ensure that the evidence from overseas is from a genuinely qualified and accredited professional who, first, matches the professional standards expected of an equivalent health professional within this jurisdiction and, secondly, understands that he or she is complying with the standards of objectivity required of an expert witness complying with the rules of court in this jurisdiction? It is important that this country’s generosity is not abused.

We welcome the modernisation of language in the legislation. Replacing “domestic violence” with “domestic abuse” and “financial abuse” with the broader concept of “economic abuse” reflects the statutory definition set out in the Domestic Abuse Act and the lived experience of many survivors. Abuse is not always physical. It can be psychological, emotional or economic and exercised through control over finances, housing or access to essentials. The updated terminology will support a more comprehensive understanding of abuse among legal professionals and front-line decision- makers.

While we support the direction of travel, we will watch closely how these changes are implemented in practice. Victims whose immigration status is tied to an abusive partner are often in extremely vulnerable positions. Navigating the legal system should not compound their trauma. It is essential that the Home Office and legal aid providers apply these new rules fairly, sensitively and consistently.

There is also the question of clarity and guidance. Following up my two earlier questions, I asked the Minister whether overseas health professionals will be provided with clear information on what constitutes acceptable medical evidence. Without this, there is a risk that legitimate claims may be delayed or refused due to uncertainty about evidential standards or that inadequate evidence might mislead the court. While updating legal language is important, it must be matched by practical understanding. Front-line professionals, from caseworkers to judges, must be equipped to apply these broader definitions in practice. Training and guidance will be crucial.

These reforms build on existing entitlements. They reinforce the role of legal aid as a vital route to protection, justice and stability for victims of abuse, so we support this statutory instrument and thank the Minister for bringing it forward, but we urge the Government to ensure that the implementation matches the intention and that those at greatest risk receive the support they need when they need it.

Property (Digital Assets etc) Bill [HL]

Lord Sandhurst Excerpts

Report stage
Wednesday 30th April 2025 Lords Chamber

I must therefore disappoint the noble Lord. I know that he was just being provocative by tabling these amendments, so that he could make a jolly good speech about digital assets.

[Lord Sandhurst (Con)]

My Lords, traditionally, English common law has recognised two forms of property: tangible things in possession and intangible things in action, such as debts and shares. However, as we have heard, with the rise of digital assets such as crypto- currencies, tokens and non-fungible tokens we encounter items that do not fit neatly into either category. These assets are becoming essential in modern commerce, and it is vital that English law remain at the forefront of international trade, safeguarding London’s position as a legal and financial hub.

The Law Commission looked at this and proposed a third category of property to accommodate such digital innovations, allowing for legal evolution without imposing rigid definitions that might exclude future technologies. The commission emphasised that statutory intervention must not undermine the existing legal clarity or introduce unnecessary complications. The flexibility of English common law is a strength; it has already adapted to address key questions in the digital sphere. The current regime offers a balance of predictability and adaptability, making our jurisdiction well positioned to lead in this space.

The Bill the commission drafted, which is now before us, does just that. We have tested it thoroughly in Committee. I have listened carefully to the concerns raised by my noble friend Lord Holmes of Richmond, and while I recognise them, the Bill has been carefully drafted and it is not necessary to amend it—save for Amendment 6, which we will come to later.

Addressing Amendments 1 and 2 in a little more detail, it will be for the courts to develop the law on the treatment of this category or to widen existing categories—whichever way one wishes to look at it. The proposed wording of Amendment 1 goes too far. The Bill’s wording is elegant and encompasses digital assets, which are not easily categorised in the conventional classifications. It also encompasses other things not yet contemplated or in our imagination but which, when they do come into existence, will be thought by the courts to deserve rights. That is what the Bill is doing; it is expressly not limited by over-definition. It achieves protection for these as yet unimagined things, while making it clear that existing digital assets will be protected.

We would be bold to depart from the views of Professor Green, chair of the Law Commission report, who is very hostile to this sort of amendment. When asked about one such suggested amendment, she said:

“That would really take away the whole bite of the Bill … the whole mischief that it addresses is that we no longer have to be stuck with these categories”.


Therefore, we cannot support Amendments 1 and 2.

Turning to Amendment 3, on codes of practice, we follow the reasoning which I have outlined. Any code of practice risks definitions which do not accommodate a new type of activity or entity outside its scope, but which is worthy of protection. Equally, the code might suggest that property rights be given to an activity which, after the detailed investigation that a trial can give, a court rightly decides should not be so protected. It is best left to the courts, which will receive evidence, hear arguments from competing parties and be able to resolve those matters. The six-month period is too soon. If the Law Commission had thought this a good idea, it could have said so. It is contrary to the tenor of its lengthy report. If the Act would, in five years’ time or whenever, benefit from amendment, it should be done with the benefit of hindsight and experience. Meanwhile, such amendment is premature.

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

My Lords, I thank the noble Lord, Lord Holmes, for raising these issues. They get to the heart of the Bill: whether there is a need to recognise a further category in statute, and whether it is helpful to provide further guidance to the courts on the attributes to consider.

On the first of these points, the Government’s firm view is that the Bill’s current approach is the right one. Some stakeholders hold to the two-category view and say that there can be no further category beyond things in action and things in possession. This view is understandable but has its roots in history, including in an influential statement in a 19th-century case. That statement was made at a time when assets such as crypto tokens simply could not have been conceived of. The world has moved on, and the law needs to move on with it.

The Special Public Bill Committee heard from stakeholders who would prefer to see these emerging assets categorised as things in action, on the basis that their approach would give more legal certainty. However, the need for new solutions is the result of the unique features of these assets and not of their categorisation. For example, the existing rules on transfer of things in action, or on remedies for interference in things in action, are simply not adequate for assets such as crypto tokens. Either way, the law, through the courts, will have to respond to their new features.

The Bill is the result of a three-year project by the Law Commission during which all arguments, including the arguments in favour of this amendment, were considered in full. A strong majority of consultees to both consultations undertaken by the commission expressed a preference for a further category. Most respondents to the committee’s call for evidence also supported this approach. This approach came from a wide range of stakeholders—from legal professionals to industry bodies and academics.

Another advantage of the Bill’s approach is that it is technologically neutral. As the noble Lord, Lord Sandhurst, excellently put it in Committee, the Bill

“encompasses other things not yet contemplated or in our imagination”.—[Official Report, 3/2/25; col. 16.]

The Bill future-proofs our law in the way the other two categories do not. As Professor Green put it in her evidence, as quoted by the noble Lords, Lord Holmes, Lord Clement-Jones and Lord Sandhurst,

“the whole mischief that it addresses is that we no longer have to be stuck with these categories”.

By removing any uncertainty around a possible further category, we will give the courts the freedom to develop our common law. This approach allows them to consider and respond to the unique features of digital assets, and other assets that we cannot yet foresee.

This flexibility is also relevant to the question raised by Amendment 3: whether the Secretary of State should publish codes of practice about the attributes of digital things that confer personal property rights. The Government’s view is that requiring the publication of codes of practice could undermine the flexibility that the current drafting affords the courts. The Law Commission considered the features of assets that have characteristics of property but do not fit into the existing categories. However, City law firms, senior barristers, financial industry groups and crypto industry groups gave clear feedback that a more detailed statutory provision incorporating these features could be counter- productive.

The Government are concerned that the same issues could stem from publishing a code of practice. It could create unhelpful boundary challenges, lead to undue complexity, and prevent the common law being able to respond flexibly and dynamically to new technologies and unforeseen challenges. This feedback was reflected in some of the written evidence submitted to the Bill Committee.

As noble Lords will remember, the Bill Committee was firmly in favour of maintaining the Bill’s current approach. My noble friend Lord Stansgate got to the heart of the matter when he said:

“The whole point of the Bill is to set out something relatively simple, to take into account new technology and to enable judges to develop common law”.—[Official Report, 3/2/25; col. 19.]


As the noble Lord, Lord Sandhurst, so eloquently put it:

“The relative silence of the current Bill is golden”.—[Official Report, 3/2/25; col. 20.]


The Bill deliberately does not try to define the types of assets that may fall within its scope. Rather, it unblocks the common law and leaves it to the courts to develop the appropriate principles, building on centuries of world-renowned common-law development. By doing this, English and Welsh and Northern Ireland law can remain dynamic, globally competitive and a useful tool for those in the digital asset market. I ask the noble Lord to withdraw his amendment.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, I can be extremely brief because I agree with much of what the noble Viscount, Lord Stansgate, has had to say. The noble Lord, Lord Holmes, is nothing if not consistent. We had data centres brought up in the Data (Use and Access) Bill and in this Bill, and I am sure he will ruthlessly bring up data centres on every possible occasion. Of course, the Government need a data centre strategy but the primary purpose of this Bill is very specific: to resolve the Colonial Bank v Whinney issue that the Law Commission wished to do. That is what we should be focused on today.

The Bill does not make digital assets property. It removes a legal barrier to their recognition as such by confirming that the traditional twofold classification is not exhaustive. That is all the Bill does, so I think that requiring a comprehensive economic impact assessment does not flow directly from this very narrow but useful Bill. I feel the same way about Amendment 5, which proposes a review within six months. Again, that goes way too far. Framing the review as being triggered

“due to any such digital assets being treated as property by virtue of this Act”

suggests that the Bill creates the property status, which is misleading.

I think the noble Lord, Lord Holmes, already knows all the arguments against his amendments so I shall carry on no further.

[Lord Sandhurst (Con)]

My Lords, an impact assessment is not practicable, whether in six months’ or three months’ time, we respectfully suggest. It would be premised on too many uncertainties. What we know is that the Bill will do no harm and is likely to do good. We have, if you like, the theoretical impact assessment of the Law Commission, which looked at all the issues in great detail. So, I suggest that we do not need this amendment, and we would not support it.

As to Amendment 5, six months’ time is, again, with respect, too short. I would suggest in parentheses that a review in five years’ time to see whether it is useful, whether it needs further amendment, how it is operating and what the effect is on the London market and litigation in London, could well be of value. Whether it needs a formal assessment or not is something that can be looked at four years down the road, but this is early days. We simply do not know enough. With respect to my noble friend, a review in a few months’ time will not help us at all. We do not support the amendment.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, at the outset, I acknowledge the long-standing advocacy for technological innovation of the noble Lord, Lord Holmes. I also pay tribute to his deep commitment to ensuring that our regulatory framework is fit for purpose in an increasingly digital world.

These amendments would mandate reviews of the impact of digital assets being treated as property by virtue of the Bill’s provisions. One amendment requires the Government to publish an economic impact assessment of the Bill on the day the Act is passed. As noble Lords will know, the Government published an impact assessment when introducing the Bill. I hope it will assist and reassure noble Lords if I highlight some of the most salient points.

As the impact assessment sets out, the Bill is expected to bring clarity to personal property law, reduce uncertainty for businesses and ensure England, Wales and Northern Ireland remain leading locations in which to innovate. Due to limited data, it is very hard, if not impossible, to quantify these benefits. However, we think the Bill will help ensure our laws remain competitive on an international stage.

The impact assessment considered the potential for the Bill to encourage the use of digital assets. However, this impact is highly debateable, given the Bill merely confirms the position that has been gradually emerging through case law in recent years. It is not expected or intended that the Bill will cause a significant increase in uptake of digital assets.

The same amendment calls for the impact assessment to cover the estimated change in demand for, and use of, digital assets. The assessment would also have to cover data centre power usage, the current level of data centre power provision and its ability to meet any increase in demand for digital assets. This follows on from the points the noble Lord, Lord Holmes, made in Committee. He mentioned that he would like to hear that the Government are committed to data centres being fuelled through renewable energy and a discussion around where data centres would be located, given the value they can bring to the country. Although these are important points, they sit outside the remit of the Bill.

I say to my noble friend Lord Stansgate that whether a data centre is in space or not is also outside the relevant part of the Bill.

Furthermore, it would likely be impossible to accurately estimate the long-term effect of the Bill on data centres. There are many greater influences on these areas, such as cloud computing, AI and general data storage. This will make it extremely difficult to assess the impact of the Bill. Therefore, such a review could result in speculative or misleading conclusions.

The other amendment calls for reviewing the

“need for further regulation of stablecoins and tokenised deposits”

within six months of the Act passing. Here, I reiterate that the Bill does not specify how the courts will treat these particular digital assets. If they were considered personal property under the Bill, this would not affect the need—or not—for regulation. The Bill deals only with a discrete matter of private law. Therefore, the proposed review is unlikely to yield any meaningful conclusions.

Moreover, issues around regulating stablecoins and tokenised deposits are already being addressed. The Government’s forthcoming financial services regulatory regime of crypto assets will include a new regulated activity for stablecoin issuance in the UK. Overseas-issued stablecoin will be regulated in the UK in line with other crypto assets. This will ensure that the Financial Conduct Authority can properly manage stablecoin-specific risks.

In addition, the Prudential Regulation Authority has published its views on the risks associated with tokenised deposits and how it expects banks to address those risks. Where tokenisation does not change the underlying economics and fundamental nature of a depositor’s claim, the PRA’s prudential regulatory framework will treat a tokenised deposit similarly to a traditional deposit. Where banks intend to take tokenised deposits from retail customers, the PRA expects this to be done in a way that meets the PRA’s rules for eligibility for depositor protection under the Financial Services Compensation Scheme.

The Bill takes a minimalist approach to achieve the specific aim of unblocking the common law on personal property. While I am very pleased that I have had the opportunity to debate these amendments, the Government fear that they could cause unnecessary bureaucracy and regulatory duplication, which could increase uncertainty rather than alleviate it.

As set out already, we think there are significant benefits of the Bill, such as bringing clarity to English, Welsh and Northern Irish law and keeping it world leading. We will, of course, monitor those benefits closely in the future. Given that, I ask the noble Lord to withdraw his amendment.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, I, too, add to our congratulations to the noble Lord, Lord Anderson, who was a very good chair. It was a very harmonious committee, as these Law Commission Committees tend to be. I am delighted to support the noble Lord, Lord Holmes, for a change, but it is very lucky we did not pass Amendment 1, that is all I can say.

[Lord Sandhurst (Con)]

My Lords, we support this amendment, for the reasons advanced by my noble friend Lord Holmes. I, too, add my thanks to the noble Lord, Lord Anderson of Ipswich, for all the hard work which he put in and to our excellent clerk, Matthew Burton. It is a pleasure now to see this Bill reach a happy conclusion, I hope.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this amendment seeks to restate the Long Title of the Bill, and I have put my name to it as the noble Lord, Lord Holmes, said. The amendment was tabled by the noble Lord but was suggested by Adam Temple, a senior barrister who specialises in financial services, when he gave evidence. This amendment addresses a slight discrepancy between the wording in the Long Title and the Bill’s operative clause. This discrepancy in wording came about following the Law Commission consultation on the draft Bill, which led to Clause 1 being amended to address concerns that it could be read as providing that any thing was capable of being personal property. That is not the intended effect of the Bill. Therefore, the wording changed from saying that a thing may be capable of being an object of property rights to instead saying that a thing is not prevented from being the object of personal property rights merely because it does not fit into the traditional categories of things in possession or things in action.

At the time of drafting, the Law Commission did not feel it was necessary to make a corresponding change to the Long Title. However, several noble Lords raised concerns about this discrepancy during our Committee debate and asked the Government to consider it further. Having reflected carefully, we are satisfied that making this change will not have any substantive effect. We are therefore content to accept this amendment so that the Long Title is consistent with the operative clause of the Bill. I end by thanking the noble Lord for his constructive discussions on this point. As for thanking noble Lords, I will leave that to the last stage of the Bill.

Crown Court Criminal Case Backlog

Lord Sandhurst Excerpts

Thursday 20th March 2025 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I declare my interest as a former chair of the Bar Council and recorder of the Crown Court. I congratulate the noble Baroness, Lady Longfield, and welcome her to this House.

The context today was set for me by the survey just published showing that one in three criminal barristers is considering leaving criminal work because they say they work too hard for too little. That will only make things worse.

From 2009-10 to 2022-23, the last year we have, public funding for justice in England and Wales had declined by over 22% in real terms. It is worth noting that the Ministry of Justice budget is about 1% of the health budget. Obviously, some backlog in the Crown Court is inevitable. Cases waiting to be tried need time for proper preparation. The issue is not the backlog but the deficit—the failure—in the system to properly cope with it.

The backlog, we have heard, is caused by many different factors, but especially, I suggest, reduced court sitting days and too few criminal barristers and those with the right certification and approval to take serious criminal cases, such as rape cases and so on. I welcome the Government’s recent decision to raise the sitting-day cap to 110,000 in the next financial year, but there must be adequate funding to ensure that these new available sitting days are properly used.

The number of cases coming into the Crown Court routinely exceeds disposals. In the third quarter of 2024, over 31,000 cases were received into the Crown Court—a 12% increase on the previous year. This rising tide must be controlled and reversed. The number of cases in the backlog, as we have seen, has continued to rise over time.

What are we going to do to tackle that backlog? We have had a number of suggestions. One made by the Bar Council was that the CPS must give more consideration to the better use of cautions and conditional cautions for low-level offending by those of relatively good character who are not likely to receive prison sentences. The CPS should also consider whether a summary charge, with the consequences of summary trial, may be sufficient for many cases, particularly now that the jurisdiction of the magistrates’ courts has been increased.

I endorse the suggestion of the noble and learned Lord, Lord Burnett, with his experience as Lord Chief Justice, that we should look very seriously at an intermediate court of a judge sitting with justices.

The court estate must be used to full capacity. The cap on sitting days for the Crown Court must be removed. Better fees must be paid to criminal and defence barristers to ensure that we have enough to meet the demand. Some 20 years ago, as chair of the Bar Council, I urged the then Department for Constitutional Affairs to pay properly for pretrial case management—nothing was done, and we have the current mess because of that.

There we are. Delay damages victims, witnesses and defendants, and it destroys this country’s reputation for justice. We must do better.