Sentencing Guidelines (Pre-sentence Reports) Bill

Baroness Chakrabarti Excerpts

Committee stage
Monday 19th May 2025 Grand Committee

Moved by

[Baroness Chakrabarti]

1: Clause 1, page 1, leave out lines 5 to 7 and insert—
“(4A) But sentencing guidelines may not require or prohibit the provision of a pre-sentence report by reference to an offender’s protected characteristics alone.”Member’s explanatory statement
This and other amendments in the name of Baroness Chakrabarti replace the reference in clause 1 to “different personal characteristics of an offender” with the tighter definition of “protected characteristics” in the Equality Act. It further restores some discretion to the Sentencing Council as long as guidelines do not require or prohibit pre-sentence reports on the basis of such characteristics alone.

[Baroness Chakrabarti (Lab)]

I apologise to the Committee that I was not able to speak at Second Reading because I was unable to stay for the whole debate, but I attended a significant portion of it and I have read Hansard for the rest. I apologise as well that, subject to how long we are engaged in this Committee, I shall have to shuttle between the Moses Room and the Chamber for Committee on the Employment Rights Bill, where I also have amendments—no discourtesy is intended. Who knows, the Chair might give us a nod with her advice as to how business is going in the Chamber. We may have Divisions on the earlier business in the Chamber.

I take this opportunity to welcome my noble friend the Minister to his first Committee stage of a Bill. I am sad that this is the first Bill that he has had to grapple with. I should have liked a more auspicious Bill for him to begin with—but who knows? With the Gauke review to come, I still have high hopes for cross-party or non-party sensible approaches to sentencing, of a kind that I think we heard a little flavour of perhaps at Questions just now.

I have made no secret of the fact that I am not a fan of this Bill, either of the politics or the constitutionality of it, and I also have practical concerns about it. It is a real shame that this Bill came out of a soundbite war, essentially, about two-tier justice, and so on, which was really an extension of the appalling sights that we witnessed last summer. It is a shame that the Government felt it necessary to respond to less than thoughtful voices on all that, and it is a shame that they were unable to reach a sensible diplomatic resolution with the Sentencing Council.

Also, as a proud member of the governing party, I believe in a certain amount of affirmative action. Again, in this regard, I pay tribute to my noble friend the Minister. One reason why he is such an asset to the Government is that the Timpson brand, not just on the high street but in terms of penal reform, is such a well-respected brand, partly for its extraordinarily progressive experiment in a version of affirmative action, offering employment to people who otherwise would not get a look-in, for whom employment makes all the difference—that is, people who have been in custody. I pay all tribute to my noble friend and to his family.

The Labour Party has been a pioneer in affirmative action, with all-women shortlists and the idea that sometimes, to deal with entrenched discrimination and injustice, one has to tilt the dial and try to take some affirmative measures. In a nutshell, that is the spirit of the Lammy report. That is where I am coming from, without making the Second Reading speech that I did not make.

We are where we are, as many noble Lords said at Second Reading. So, in the spirit of good faith and attempting to improve the Bill, I have in my name Amendments 1, 5, 11 and 13 in this group, and I support all the amendments proposed by the noble Lord, Lord Marks of Henley-on-Thames, and his colleagues, which I think are in the same spirit, attempting to minimise in particular any constitutional damage. Let us not throw the baby out with the bath water if we are concerned about perceptions of so-called two-tier justice; let us just get this right and make sure, of course, that people are being treated as individuals and not as ciphers for any particular group, but that their circumstances are also appropriately taken into account, which really is the whole point of a pre-sentence report in the first place.

First, in my Amendment 1, I take issue with the broad and quite vague concept of “personal characteristics” offered in the Bill and suggest that, if the Government are so concerned about this sloganistic perception of two-tiered justice, they should probably go to the tighter definitions in the Equality Act of protected characteristics on the one hand, but also not really clip the wings of the Sentencing Council too much: make sure the Sentencing Council does not clip the wings of individual sentencers on the one hand, and let individual sentencers make decisions about when they should and should not require a pre-sentence report. But this concept of personal characteristics is very vague.

I am grateful to my noble friend the Minister for his letter of last week, but I think that relying on Strasbourg case law about Article 14 is really not the best approach in the context of domestic law. Not that I am not a great champion of the convention, you understand; there are criteria that are useful at that kind of international law level. But at the domestic level, we should be a bit more granular and precise. In the context of looking at convicted people as individual human beings and at sentencing as an exercise in looking at those individual human beings and at what will help with rehabilitation and preventing reoffending, this very broad, vague concept that is been adopted in the Bill is a mistake and is in grave danger of shutting out the sorts of considerations that actually would be very useful when deciding in the context of rationing.

It is a shame we have to ration pre-sentence reports. Let us be clear—let me put myself on the record. I would like to have a pre-sentence report, ideally, whenever someone is going to be sentenced to a community penalty or to custody, and especially for the first time. If I am going to be told that that is totally unrealistic, so be it, but I certainly do not want their individual circumstances to be shut out of that assessment, and the Bill as currently drafted risks that. That was put incredibly well by a number of noble Lords at Second Reading and I refer colleagues to Hansard on that.

So that is why I suggest in my amendment to Clause 1 that it is one thing to say that a protected characteristic under the Equality Act should never be the reason why you definitely get a PSR or you do not get one, because we are concerned about two-tier justice and all of that—so you should not just get one because you are a woman or because you are black. But if that is part of the matrix of your general experience, knowing what we know about oversentencing and disproportionate outcomes, on the one hand, we need the tighter definition that comes with the Equality Act rather than in the case law from Article 14, and on the other hand, we should not clip the wings of the Sentencing Council too tightly.

Why should we not do that? From a constitutional point of view, the Sentencing Council plays a very important role in bridging the constitutional gap between the Executive and the legislature on the one hand, and sentences and judges on the other hand. What do I mean by that? If Parliament, with or without the initiation of the Government—it usually is on the initiation of the Government, let us be clear—wants to tell judges what to do, Parliament has vehicles for so doing. The primary vehicle is primary legislation and there is also secondary legislation. But the point of sentencing guidelines is not to do that.

The point of the guidelines is so that judges passing sentences of any level rightly and necessarily have discretion, which they must exercise in the interests of individual justice. Sentencing guidelines are about helping them structure that discretion so that we do not have a total postcode lottery and, in a sense, so that brother and sister sentencers can share their thinking about the sorts of factors they might like to have in mind before they sentence or, in this case, before they commission a pre-sentence report. That is what my first amendment is about: do not clip the wings of the Sentencing Council too tightly. Do not use vague terms that come from the jurisprudence of Article 14 rather than the tighter definitions in our established domestic legislation.

Moving on to other amendments in my name in this group, I draw the Committee’s attention to Amendment 5. This flips the dial and looks positively at the sorts of factors we would perhaps want. We have talked about what we do not want the Sentencing Council to be invoking in its guidelines because we are afraid of any suggestion that people are getting special treatment. But what about the sorts of things that ought to encourage the use of pre-sentence reports? I repeat that I would like everyone to get one but, if they have to be rationed, what sorts of factors would we actively want a judge to take into account and therefore the Sentencing Council to take into account and suggest to judges?

These factors are found in my Amendment 5, which includes

“where the sentencer believes that their own life experience is particularly far removed from that of the offender”.

We do not like to talk about this, but that was partly what the Lammy review was about. This is not an affront to people of a particular type; it is just saying that it is very hard. It is one thing to sit in judgment when you are trying to come up with positive, creative community and/or custodial sentences that are going to make things better and not worse. Maybe you should try to understand an offender that you do not understand—so, where the sentencer believes that their own life experience is particularly far removed from that of the offender.

The amendment also includes

“where the sentencer believes that an offender is a member of social group that appears to be over-represented in the prison population”.

I refer once more to the excellent Lammy report, which is how we got here in the first place. I am embarrassed, but also proud, to say that it was commissioned by a Conservative Prime Minister and written by the now Labour Foreign Secretary. It seems to be possible to have a different kind of conversation about sentencing and the criminal justice system, which I hope will continue later this week with the advent of the Gauke review.

The third area for consideration proposed by Amendment 5 is

“where the sentencer believes that an offender or their dependants may be particularly badly”

affected

“by the imposition of a community or custodial sentence”.

A famous Strasbourg judgment, Thlimmenos v Greece, makes a point about equal treatment; it is a very important Strasbourg decision. Non-discrimination is not just about treating people in the same way; it is about understanding the different needs and experiences of different people. If I require everyone coming to my restaurant or hotel to go up a steep staircase, I am shutting out anyone in a wheelchair. Thlimmenos v Greece is the landmark Strasbourg decision that said we also need to think about treating people with different experiences and needs differently in order to enforce the very important human rights principle of equal treatment.

--- Later in debate ---

[Lord Timpson (Lab)]

Again, I apologise for not being too repetitive, but I am very keen on making sure that I am accurate in everything that I say. I will write to the right reverend Prelate.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all Members of the Committee who made their very forensic and clear points about the Bill and the manifold problems with it. I am also grateful to my noble friend the Minister, who replied with about as much kindness, courtesy and elegance as it is possible to do in these very tricky circumstances. I will not be pressing my amendments today, and I am glad that he and his advisers will reflect a little more before Report, which I think they would be wise to do.

I will just leave my noble friend with one thought about the points that I made. He has spoken often about preferential treatment, and I remind him of what I said about the high steps to my restaurant or hotel. If I add a ramp, a hoist or a lift for the person in the wheelchair to gain access to a service that they would not otherwise get access to, is that preferential treatment or a genuine, progressive, liberal and even one-nation Conservative attempt to level things out a little? I know what I think, and I suspect what some other Members of this Committee might think as well, but with that I beg leave to withdraw my amendment.

Amendment 1 withdrawn.