Sentencing Guidelines (Pre-sentence Reports) Bill

Ashley Fox Excerpts

Committee of the whole House & Report stage
Wednesday 30th April 2025 Commons Chamber

[Andy Slaughter (Hammersmith and Chiswick) (Lab)]

It is a pleasure to take part in the Committee stage of this short Bill. On Second Reading, only a few days ago, I set out my views on the merits or otherwise of the Bill; how it affects the role of the Sentencing Council; the council’s consultation on this guideline; and the response to that consultation by the then Government, through their sentencing Minister, and by the Justice Committee, through my predecessor as Chair, Sir Bob Neill KC.

I also regretted the way that the Bill has been used to undermine judicial independence, and to allow ad hominem attacks on judges under the guise of belated objections to the guideline. I am not the only person to raise these concerns, and I agree entirely with the article on this matter by Sir Bob in The Times last Thursday. I do not propose repeating any of his arguments; nor do I need to spend a long time on the amendments tabled for debate. Those proposed by the official Opposition do no more than continue on another front the culture war that is the obsession of the shadow Lord Chancellor in his quest for higher office.

I am more sympathetic to the new clause in the name of the Liberal Democrat spokesperson, the hon. Member for Eastbourne (Josh Babarinde), who is an important member of the Justice Committee. Given the fractured nature of the debate around the Bill, and the testy relationship between the Sentencing Council and the Ministry of Justice, it may be sensible to review the effect of the Bill, but I am not sure we need to put that into legislation. Indeed, the sentencing landscape is about to shift fundamentally with the imminent publication of the independent sentencing review, which is swiftly to be followed by a sentencing Bill. I suspect that issues raised by this Bill will get swallowed up in that process, and the Lord Chancellor has indicated that it may include a review of the role of the Sentencing Council.

I do not want to stir the pot further, but I observe that had the Sentencing Council been prepared, without the threat of legislation, to postpone implementation of the guideline, all these matters might have been dealt with in one Bill, and in the light of David Gauke’s recommendations. The parliamentary and ministerial time that has been spent debating a relatively narrow point could, in my view, have been better spent on other matters requiring urgent attention in our courts and prisons.

[Sir Ashley Fox (Bridgwater) (Con)]

Does the hon. Gentleman accept that the reason why we are here today is an error of judgment by the Sentencing Council, on which it refused to back down until threatened with legislation? Does the amendment proposed by the shadow Justice Secretary not offer greater protection to the public from future errors of judgment by the Sentencing Council?

[Andy Slaughter]

As I say, I do not want to repeat everything I said on Second Reading. I made a case then for why the Sentencing Council had behaved quite properly. It was complimented by many people—including the Justice Committee, on which the hon. Gentleman serves—for the way it conducted its consultation. I have a great deal of sympathy with the council and its chair, who were somewhat surprised by the reaction at that stage, the guideline having been approved by pretty much everyone who considered it at that time.

On the views of the hon. Gentleman and other members of the Justice Committee, whose opinions I have a great deal of time for, the Sentencing Council was a little stubborn when confronted with the Lord Chancellor’s view, as well as those of other Members of the House, and it could have acted to prevent us all needing to discuss this today; as I say, there are many other matters that need our attention.

On the amendments in the name of the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright), as I would expect from a distinguished former Attorney General, his amendments go to the central issue in the Bill, which is whether it does what the Government intend it to do. I hope the Minister will address the issue of what a “personal characteristic” is, as opposed to a particular demographic cohort, and the question of what characteristics are caught by clause 1.

I will take a few minutes, if I may, to add some related questions on which I am seeking the Minister’s guidance. First, I turn to the effect of the Bill on the sentencing guidelines already in force. The effect of the Bill goes beyond the imposition of the community and custodial sentences guideline and future guidelines; it would also render unlawful the inclusion of provision framed by reference to different characteristics of an offender in all definitive sentencing guidelines by the Sentencing Council that have already been issued and are in force. The potential retrospective effect of the Bill on guidelines already in force could create legal uncertainty as to their lawfulness.

There are two main examples of overarching guidelines in force that could be caught by the Bill: the guideline on sentencing children and young people, and the guideline on sentencing offenders with mental disorders, developmental disorders or neurological impairments.

In relation to offence-specific guidelines, a significant number contain mitigating factors framed by personal characteristics that have expanded explanations referring to the need to order a pre-sentence report—for example, an explanation for the mitigating factor of “age and/or lack of maturity” in the aggravated burglary guideline. By way of another example, the explanation of the mitigating factor of pregnancy, childbirth and post-natal care in the same guideline states:

“When considering a custodial or community sentence for a pregnant or postnatal offender…the Probation Service should be asked to address the issues below in a pre-sentence report. If a suitable pre-sentence report is not available, sentencing should normally be adjourned until one is available.”

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I am concerned that there are ramifications to proposals in the Bill that have not been covered. It may be that those can be corrected in the other place, or it may be that matters have to wait until we have a sentencing Bill in the autumn. While I entirely understand the Government’s frustration with the Sentencing Council, I do not feel that this Bill is the solution to the problems that they have identified, whereas its consequences have been exaggerated in many respects. If we want a system that is not only fair and robust, but clear in dealing with when pre-sentence reports are needed, we need to return to this issue on a future occasion.

[Sir Ashley Fox]

I have already recorded my support for the principle of this Bill, which is unfortunately necessary to uphold the principle of equal justice. I speak in support of amendments 3 and 4, which would further strengthen this legislation.

Amendment 3 would give the Justice Secretary the power to prevent future errors of judgment by the Sentencing Council. It would require the council to secure ministerial consent before issuing any sentencing guidelines concerning pre-sentence reports. We should be clear that that is not a measure aimed at politicising justice. However, we must ensure democratic oversight of a body that has shown itself to be capable of committing a serious error of judgment, which led to the situation today. The reason why we are legislating is that the Sentencing Council’s guidance proposed treating offenders differently based on their ethnic, cultural or religious identities. That is wrong.

[Ms Diane Abbott]

The Sentencing Council has at no point suggested treating defendants differently according to their ethnicity or religion. All it has tried to do is ensure that judges and magistrates have the maximum information.

[Sir Ashley Fox]

The Sentencing Council says that if, for example, someone is a white, Christian male, they are less likely to benefit from a pre-sentence report than if they were a member of a religious or ethnic minority. I believe that that is wrong.

[Ayoub Khan (Birmingham Perry Barr) (Ind)]

Does the hon. Member know that any defendant before the courts who has no previous convictions, despite the seriousness of the offence, is entitled to a pre-sentence report?

[Sir Ashley Fox]

I am grateful to the hon. Member for his intervention. As a former solicitor, I am familiar with that provision, and I agree that any defendant who has not yet received a custodial sentence should have the benefit of a pre-sentence report. However, imagine two criminals who both have a criminal record, but one is a member of a religious or ethnic minority and one is not. The guidelines propose treating them differently, and that is not justice.

[Dr Evans]

Is the fact not that the sentencing guidance said that a pre-sentence report would normally be considered necessary, and then went on to talk about race and religion? Making those distinctions immediately apparent in sentencing guidance, which could mean that a white Christian male would be treated differently if they committed the same offence as someone of a different ethnicity, is the fundamental problem.

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[Sir Ashley Fox]

Indeed. I am grateful to my hon. Friend for making that point; the point I wish to make to the Committee is that all defendants should be treated equally. It should not be a matter of whether or not they are a member of an ethnic or religious minority.

The Sentencing Council did not withdraw the guidance on principle, and it did not acknowledge its error. It was forced to backtrack only after public and political pressure, largely from the shadow Justice Secretary, my right hon. Friend the Member for Newark (Robert Jenrick). Even then, the council continued to defend the policy’s rationale in private communications to the judiciary. That is not accountability—it is evasion. That is precisely why amendment 3 is so vital. We cannot allow this to happen again, and Parliament must have a say when guidance threatens the impartiality of our legal system.

Amendment 4, which addresses the content of sentencing guidance itself, is equally important. The amendment would make it illegal for sentencing decisions to consider a defendant’s group identity, particularly in reference to historical discrimination that has no bearing on their individual case. Current bail guidance from the Ministry of Justice already advises courts to consider the trauma suffered by individuals whose relatives experienced racism or cultural discrimination. It even refers to “important historical events” and their supposed differential impact on specific ethnic or cultural groups. That approach undermines the principle that people should be judged as individuals, not as members of a group. Amendment 4 would draw a clear legal line: mitigating factors in sentencing must relate directly to an individual’s actions and circumstances. Inherited identity or injustices not experienced by a particular convicted criminal should not be relevant to the sentence passed by the court.

Race, religion or cultural background should not determine whether someone is sent to prison, and it should not determine whether or not someone should benefit from a pre-sentence report. The Lord Chancellor has argued that the current Bill allows her to “move at pace” to reverse the worst aspects of the Sentencing Council’s proposals, but this is not just about moving fast; it is also about ensuring that we never face this situation again. Amendments 3 and 4 are essential if we are serious about protecting the most basic principle of a free society, which is equality before the law. Without them, the Bill addresses the symptoms, but not the cause. As such, I urge the Committee to support those amendments and reaffirm our commitment to equality before the law.

[Ms Abbott]

I entirely agree with Members who are making the case that we should all be equal before the law. The problem is that the figures show that that is not the case, and it has not been the case for decades. If we look at the statistics for the numbers of people in prison, black people make up 12% of the prison population, yet we only make up 4% of the general population. That tends to raise the concern that we are not equal before the law across the whole custodial and criminal justice system. I remember that years ago, before some Members were in the House, you could not say anything about institutional racism in the police force and how black people were treated by the police. It took Stephen Lawrence and the Macpherson inquiry to get politicians and people who speak for the state to even acknowledge that there was such an issue as institutional racism in the police force.

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[Josh Babarinde (Eastbourne) (LD)]

I made the Liberal Democrat position on this very short Bill, and on this issue more widely, abundantly clear in the last debate that we had on this matter: we believe in equality before the law, we believe in the rule of law, and we believe that no one is above the law. That is why we believe that anyone facing the prospect of a custodial sentence should be the subject of a pre-sentence report. We believe that the state has that duty before dispensing its power to deprive someone of their liberty.

There is no world in which judges and magistrates having more information about an offender, whoever they are, and their circumstances is a bad thing. That is why it is an injustice that the use of pre-sentence reports had fallen from 160,000 in 2015 to just 90,000 by 2023, which is a cut of 42%. That has left judges and magistrates with fewer resources and insights than ever with which to go about their work. Less informed sentencing means less satisfactory sentencing outcomes. It means more reoffending, more victims and more turmoil, and that is unacceptable. That is not justice.

This is a product of the under-investment in our Probation Service—it compiles the reports—which was gutted under the Conservative Government. I therefore welcome the fact that the Minister, in his closing speech on Second Reading, agreed with me that

“the debate should be about how we move to universality of pre-sentence reports, not about rationing.”—[Official Report, 22 April 2025; Vol. 765, c. 1019.]

I will come to new clause 1 shortly.

[Sir Ashley Fox]

The hon. Member will be aware that any sentencing magistrate or judge can request a pre-sentence report, so I would say that his use of the word “rationing” is inappropriate.

[Josh Babarinde]

I do not know whether the hon. Member has read the Sentencing Council’s summary of the responses to the draft guidance that was in consultation under the Conservative Government, but it paraphrased magistrates and judges as saying that driving the universality of pre-sentence reports would be challenging in the light of the limited resource for the Probation Service and of the court backlogs. I would suggest that he consult that document to see the phrases used by those legal professionals.