Sentencing Guidelines (Pre-sentence Reports) Bill

Caroline Johnson Excerpts

2nd reading
Tuesday 22nd April 2025 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Shabana Mahmood)]

I beg to move, That the Bill be now read a Second time.

When I spoke in this House on 1 April, I set out the Government’s intention to introduce emergency legislation, because I believe that our justice system must be above all else fair, and that, standing before a judge, we are all equal, no matter the colour of our skin or the question of our faith. Given the existential nature of this matter for our justice system, I was clear that we would move at pace to change the law. The Sentencing Guidelines (Pre-sentence Reports) Bill was introduced that same day. With Second Reading taking place just three weeks later, we are forging ahead with plans to legislate as quickly as possible.

Before I set out the contents of the Bill, it bears repeating how we came to be in the current situation and why expedited legislation is necessary. In the last Parliament, the Sentencing Council put forward revised guidelines on the imposition of community and custodial sentences. I should note that during a statutory consultation they were welcomed by the last Conservative Government in no uncertain terms. The shadow Transport Secretary, the hon. Member for Orpington (Gareth Bacon), who was a Justice Minister at the time, should be able to furnish his colleagues with the details, but as he is absent today, I will do so.

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

Can the right hon. Lady clarify whether the guidelines proposed under the previous Government were the same as those with which she is dealing now, or did they differ—and if they differed, how did they differ?

[Shabana Mahmood]

They did not differ in any substantial way. All the guidelines, in so far as they concern issues relating to race, religion, culture or belief, are exactly the same as those to which the Justice Minister responded under the Conservative Administration. Hiding behind that, I am afraid, shows a failure to reckon with the Opposition’s own track record, which has become quite a hallmark of theirs in recent weeks and months.

These guidelines help judges, when sentencing an offender, to determine whether to impose a community order or a custodial sentence, providing guidance on the thresholds for disposals of this type. In the process of deciding which threshold has been met, judges are required by law to obtain a pre-sentence report, except in circumstances where they consider such a report to be unnecessary. The reports are used to give the courts more context of the offending behaviour in a given case, and set out any factors that should be considered as part of the sentencing process. As I said to the House on 1 April, generally speaking I am in favour of the use of pre-sentence reports, and in fact I have recently freed up capacity in the Probation Service precisely so that it has more time to produce reports of this type.

--- Later in debate ---

[Shabana Mahmood]

However, it is always up to the people in this House, if they feel that a law is being applied in ways that were not intended, to put that law right. I am afraid the right hon. Member’s comment is a rather damning indictment of 14 years of Conservative Government, with 14 years of sitting back and allowing other people to do the policy work that Ministers in the previous Government perhaps did not have the time or inclination to do themselves.

I do not think that judges, in applying the law, are doing anything wrong; they are doing their job. They are public servants, and they do their job independently. It is right that we have an independent judiciary in this country. We are very lucky to have a judiciary that is world class and highly regarded. One of the reasons why so many businesses from all over the world want to do business in this country is that they know they can trust our courts system and the independence of our judges. I think it is incumbent on the whole of this House to defend the independence of the judiciary, because that independence was hard won. It is one of our absolute USPs as a rule of law jurisdiction in this country, and none of us must ever do anything that puts it at risk.

If there are issues about the way in which the law is applied—if Parliament or Ministers ever consider that it has strayed too far from the original intention—we can always legislate, and I am doing just that today. I hope this is an example that others, if they have issues in their areas, may consider taking as well. It is a question of policy, and that should be decided and debated here in this place, in this House, and the public must be able to hold us to account for the decisions we take, rewarding or punishing us at the ballot box as they see fit. This is the domain of government, politics and Parliament, and today we reassert our ability to determine this country’s policy on the issue of equality of treatment before the law.

[Dr Caroline Johnson]

The right hon. Lady is making a point about the wider justice system and the importance of equality before the law. What has she done to assure herself and the House that, in all aspects of her Department’s work, people are being treated equally under the law—whether in relation to parole, how they are treated in prison, bail conditions and so on?

[Shabana Mahmood]

I have ordered a wider review of all guidance across all the MOJ’s work in so far as it relates to equality before the law to make sure that the problems we have uncovered here are not replicated elsewhere. There is the issue of bail guidance, which was discussed in the House earlier. I have already ordered a review, and that guidance is being redrafted as we speak. That particular guidance has been something like 20 years in the making—it has been added to over many years—so the redraft has to be careful and we must make sure it does not have any unintended consequences. However, we are cracking on with that work at pace, and I will make sure that, by the time I am done, we can all be absolutely clear that this sweep towards allowing potential differential treatment is sorted out once and for all.

[Dr Johnson]

rose—

[Shabana Mahmood]

If the hon. Lady will forgive me, I will make more progress. I think I have been more than generous.

That brings me to the Bill before us today. While the updated Sentencing Council guidelines are currently paused, if we do not act they will come into force— [Interruption.] Well, there was a lot to say, gentlemen, about the previous Government’s track record and it needed to be said. And I do not think the hon. Member for Kingswinford and South Staffordshire (Mike Wood) should mind me taking interventions from people on his own side. That is a novel approach for the shadow Front Bench.

Let me turn to the specifics of the Bill. It is tightly focused, containing just two clauses. Clause 1 amends section 120 of the Coroners and Justice Act 2009, which brought the Sentencing Council into existence. It dictates that the guidelines the council produces may not include references to personal characteristics, including race, religion or belief, or cultural background. Clause 2 relates to how the Bill will be enacted: that it will apply only to England and Wales, and that its measures will come into force on the day after it passes.

It is also important to be clear about what the Bill does not do. It does not stop the Sentencing Council from issuing broader guidance concerning requests for pre-sentence reports in those cases where it is helpful for the court to understand more about an offender’s history and personal circumstances. The Bill does not interfere with the courts’ duties to obtain a pre-sentence report in appropriate cases, for example those involving primary carers and victims of domestic abuse. And, as detailed in the Bill’s explanatory notes, it does not change existing precedent where the courts have determined that pre-sentence reports are necessary or desirable, in cases such as: Thompson, where the Court of Appeal recently emphasised their importance in sentencing pregnant women or women who have recently given birth; Meanley, in which the court referenced the value of pre-sentence reports for young defendants; or Kurmekaj, where the defendant had a traumatic upbringing, vulnerability, and was a victim of modern slavery. Instead, the Bill narrowly focuses on the issue at hand, putting beyond doubt a principle which finds its ancient origins in Magna Carta and has developed over the centuries to serve the interests of justice not just here but in jurisdictions around the world: that each of us, no matter who we are, where we come from or what we believe, stand equal before the law of the land.

Wider questions remain about the role and the powers of the Sentencing Council, as I have noted. The council does important work, bringing consistency to judicial decision making, but it is clear in this instance that it went beyond its original remit. It sought to set policy, which stood out of step with the Government of the day. Therefore, it raises the question: who should set sentencing policy? Today’s legislation only addresses this question in the narrowest terms, considering the guidance on pre-sentence reports. It does not give us a definitive resolution as to whether it is Government Ministers or members of the Sentencing Council who should decide policy in the future. As I noted, that leaves us with a democratic deficit.

As I told the House on 1 April, the question of the role and powers of the Sentencing Council must therefore be considered further. That work is already under way in my Department. Should a further change be required, the Government will include it in upcoming legislation. The Sentencing Council plays an important role in our justice system, and any changes to it must be made carefully and with the consideration it deserves. I am sure they will be discussed more in this House in the months ahead, and I welcome the opportunity to debate them.

The Bill we are debating today is small, but the issues it contains could not be of greater significance. I know the majority of right hon. and hon. Members in this House would agree that the Sentencing Council’s intentions on this issue were noble, but in trying to reach for equality of outcome, they sacrificed too much, undermining the sacred principle of equality before the law. It is right that we, as policymakers, stop the updated guidelines from coming into force. We must stand up for the idea that no matter our race or religion, no person should receive preferential treatment as they stand in the dock before a judge, so I beg to move that the Bill now be read a second time.

--- Later in debate ---

[Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)]

I can see that, when it comes to this legislation, I am in a minority—it is not the first time, and I suspect that it will not be the last. There has been a great deal of misinformation about the Sentencing Council’s original guidelines, both in the run-up to and during the debate, so I, with all humility, want to insert some facts into the debate.

First, it is important to recognise what the Sentencing Council actually is. Much of the debate today and in recent weeks has seemed to presume that it is a bunch of heedless young barristers and social workers. On the contrary, the Sentencing Council is largely composed of some of the most senior judges in the land. They include: Lord Justice William Davis, its chair, who was called to the Bar in 1976; His Honour Judge Simon Drew, a circuit judge sitting in the Court of Appeal; Lord Justice Tim Holroyde, lord justice of appeal and vice-president of the Court of Appeal; and the honourable Mr Justice Mark Wall, who was appointed a High Court judge in 2020. There are also some senior probation officers and magistrates. That is hardly a cohort of men and women who need the firm hand of an MP on their shoulder to explain to them what the rule of law is.

[Dr Caroline Johnson]

The right hon. Lady is making the important point that the Sentencing Council is comprised of senior and learned individuals. Given that, what circumstances does she think conspired to let it get the guidelines so very wrong? It is clearly felt on both sides of the House that they are wrong.

[Ms Abbott]

I can say with confidence that the Sentencing Council is talking about issues to do with race and criminal justice because of a history, going back decades, of problematic issues in relation to race and criminal justice. I will come to those later. The independence of the Sentencing Council is crucial, and the idea that anybody in the Chamber is standing up for law and order yet seeks to undermine its independence—and by implication, that of the judiciary as a whole—is quite remarkable.

Next, what do the guidelines actually say? Much of the debate implies that black and minority persons are singled out for pre-sentence reports under the guidelines. On the contrary, there is a whole list of people in the guidelines on whom, the Sentencing Council suggests, judges and magistrates might ask for a pre-sentence report. Those persons include those at risk of committing their first custodial sentence; young adults; women; ethnic minorities; yes, cultural minorities, of course; pregnant and post-natal women; and the sole or primary carer for dependent relatives. The Sentencing Council is clear that that is not an exclusive list; ideally, every defendant should have a pre-sentence report. The aim of the guidelines is to ensure that judges and magistrates get the most information possible. Who could object to garnering more information on any defendant? It is certainly not the intention of the guidelines to dictate the sentence in any given case.

Yet it is being argued that a pre-sentencing report will discourage a judge from sending an offender to jail. We are asked to believe that our judiciary is weak-minded and susceptible, and that it will not live up to its centuries-old standards, which, as we heard earlier, go all the way back to Magna Carta. However, the House was also told earlier that our judiciary is world-class and highly regarded. Both propositions cannot be true.