Sentencing Guidelines (Pre-sentence Reports) Bill

Ashley Fox Excerpts

2nd reading
Tuesday 22nd April 2025 Commons Chamber

[Shabana Mahmood]

I have had constructive conversations with the Sentencing Council, and I have made it very clear that I do not really do personal. I certainly would not do it in relation to the judiciary, whose independence I uphold and whose security I am ultimately responsible for. I take those responsibilities very seriously. I swore an oath on my holy book, and that means a huge amount to me. There is a clear difference here about where the line is drawn between matters of policy and matters that are correctly within the purview of the judiciary, which is how the law should be applied in the cases that they hear. I am simply making it very clear that this is policy and is for this place to determine, but as I will come to later in my speech, this situation has highlighted that there is potentially a democratic deficit here. That is why I am reviewing the wider roles and powers of the Sentencing Council, and will legislate in upcoming legislation if necessary. I will now make more progress with my speech and give way to other colleagues later if people wish to intervene again.

The updated guidelines specifically encouraged judges to request pre-sentence reports for some offenders and not for others, stipulating the circumstances in which a pre-sentence report would “normally be considered necessary”. This included cases involving offenders from ethnic, cultural or faith minorities. In other words, a pre-sentence report would normally be considered necessary for a black offender or a Muslim one, but not necessarily if an offender is Christian or white, and we must be clear about what that means. By singling out one group over another, all may be equal but some are more equal than others. We must also be honest about the impact that this could have. Equipped with more information about one offender than another, the court may be less likely to send that offender to prison. I therefore consider the guidance to be a clear example of differential treatment. As such, it risks undermining public confidence in a justice system that is built on the idea of equality before the law.

[Sir Ashley Fox (Bridgwater) (Con)]

Given that the Sentencing Council refused the Lord Chancellor’s first invitation to rewrite its guidance, is she confident that the limited nature of this Bill is sufficient? Would she not be wiser to take a broader power to ensure that in future all sentencing guidance has an affirmative vote in this place?

[Shabana Mahmood]

It is right that, moving at pace, I have sought to have a targeted Bill that deals with this particular imposition guideline. I have made it very clear that I am conducting a wider review of the role and powers of the Sentencing Council. If we need to legislate further—maybe in the way that the hon. Gentleman suggests, although other mechanisms are also potentially available—I will do so. I am not ruling out further legislation—in fact, it is very much on the table—but it is right that we are moving quickly in order to deal with the problems that could be caused by the guidelines coming into force, and that I have taken targeted action in this short but focused Bill.

As I told the House a few weeks ago, I had several discussions with the Sentencing Council in the time leading up to 1 April, when the updated guidelines were due to come into force. I reiterate my gratitude to the council’s chair, Lord Justice William Davis, for engaging with me on this issue and for ultimately making the right call by pausing the guidelines while Parliament has its say. I should say again that I have no doubt whatsoever about the noble intentions behind the proposed changes, because I understand the problem that the Sentencing Council was attempting to address. Racial inequalities exist in our justice system and are evident in the sentencing disparities between offenders from different backgrounds, but as the Sentencing Council acknowledges, the reasons for this are unclear. Addressing inequalities in the justice system is something that this Government take very seriously, and we are determined to increase confidence in its outcomes, which is why we are working with the judiciary to make the system more representative of the public it serves.

I have also commissioned a review of the data that my Department holds on disparities in the justice system in order to better understand the drivers of the problem, but although I agree with the Sentencing Council’s diagnosis, I believe it has prescribed the wrong cure. Going ahead with the new guidelines would have been an extraordinary step to take. It would have been extraordinary because of what it puts at risk: the very foundations of our justice system, which was built on equality before the law. The unintended consequences would have been considerable, because the idea that we improve things for people in this country who look like me by telling the public that we will be given favourable treatment is not just wrong, but dangerous. We are all safer in this country when everyone knows we are treated the same. If we sacrifice that, even in pursuit of a noble ideal such as equality, we risk bringing the whole edifice crashing to the ground.

I know there are disagreements in this House with regard to the correct policy to pursue, not least between the shadow Secretary of State for Justice, who opposes the guidelines, and the shadow Transport Secretary, whose support for them I have noted already—though I suppose that does assume that the shadow Secretary of State for Justice really is who he shows himself to be today. I must admit that I have begun to question whether his principles are set or really of no fixed abode. After all, he did pose as a Cameroon centrist for so many years, and only recently became his party’s populist flag bearer. It is enough to make me wonder whether he is, in fact, a Marxist—but one of the Groucho variety. “These are my principles,” he says, and if you do not like them, he has others.

Regardless of our positions on this question of policy, one thing is clear: this is a question of policy. How the state addresses an issue that is systemic, complex and of unclear origin is a question of what the law should be, not how the law should be applied. Let me be clear about that distinction: Parliament sets the laws and the judiciary determine how they are applied, and they must be defended as they do so. I will always defend judicial independence, and as I said earlier, I swore an oath to do so when I became the Lord Chancellor. Given the shadow Lord Chancellor’s recent diatribes, including just hours ago in this place, he may want to acquaint himself with that oath, if he intends ever succeeding me in this position, although I am assuming that it is my job he wants, not that of the Leader of the Opposition.

--- Later in debate ---

[Sir Ashley Fox (Bridgwater) (Con)]

This Bill is unfortunately necessary because of the unwise actions of the Sentencing Council. While the Lord Chancellor is right to bring the Bill forward, she did so only at the very last moment. It was on Monday 31 March, mere hours before the guidelines were due to come into force, that the Sentencing Council was forced to perform a U-turn. Those guidelines would have led to a two-tier justice system in England and Wales.

The Sentencing Council did not withdraw those guidelines out of wisdom or principle—it did so because it was caught out. Its backtrack was quietly communicated to judges and magistrates several hours after courts had already opened on Tuesday. To make matters worse, the Sentencing Council’s message said that it still believed the policy was necessary. There was nothing necessary about that policy.

Under the proposed guidelines, judges and magistrates were told that pre-sentence reports should normally be required when sentencing individuals from ethnic, faith or cultural minority groups. What about those who are white, male and not part of a specified minority? They would not have fallen within that description. The implication was clear: defendants will be treated differently, not based on their actions or the harm they have caused, but based on their identity, and that is wrong. It was only after the intervention of my right hon. Friend the Member for Newark (Robert Jenrick), the shadow Justice Secretary, that the Lord Chancellor rightly took action. Race, culture and religion should never determine whether someone goes to prison. The Lord Chancellor said that she was willing to legislate to stop this travesty if the Sentencing Council refused to back down, and that is what we are now doing.

This is about the most fundamental principle in a free society: equality before the law. The question we must now ask ourselves is how the Sentencing Council got this so badly wrong and, judging by the comments of Lord Justice Davis, would continue to get wrong. The Sentencing Council’s guidelines would have had real consequences. In borderline cases where a judge is unsure whether to issue a custodial sentence, the presence or absence of a pre-sentence report can be decisive. The whole purpose of these reports is to influence the outcome. By tilting the system toward giving those reports preferentially to certain identity groups, the council would effectively be tipping the scales of justice, and the council knows it. Baroness Falkner, chair of the Equalities and Human Rights Commission, has warned that the guidelines may violate the Equality Act 2010.

If we allow sentencing outcomes to be guided by race, faith or cultural identity, we abandon the core British principle that the law applies equally to all of us. I agree with the Lord Chancellor that we should pass this legislation to override this guidance, but how confident is she that we will not face a similar situation again? I would like her to go further and ensure that Parliament is given oversight of all future sentencing guidance. We must put into law the principle that no factor like race, religion or cultural minority status should ever influence sentencing procedures. Justice must remain blind, not selectively blinkered. If we lose equal justice, we lose the foundation of a free society.