Sentencing Guidelines (Pre-sentence Reports) Bill

Kieran Mullan Excerpts

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

[Dr Kieran Mullan (Bexhill and Battle) (Con)]

I would expect the Liberal Democrat spokesperson to at least acknowledge that such references are to judges in their capacity as leaders of the Sentencing Council, not to judges sitting in individual cases. That is an important distinction to make when parliamentarians comment on their conduct.

[Josh Babarinde]

I refer the hon. Member to the comments the shadow Justice Secretary made at the last Justice questions—I think the hon. Member was not in attendance for that—when he named a specific judge and made a critique of or complaint about them outside the formal processes.

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[The First Deputy Chairman]

I call the shadow Minister.

[Dr Mullan]

I rise to speak in support of amendments 3 and 4 in my name and in the name of the shadow Secretary of State for Justice, my right hon. Friend the Member for Newark (Robert Jenrick), and of Conservative colleagues.

As MPs from across the House have made clear, the draft guidelines produced by the Sentencing Council would 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. In fact, the record will show that two-tier justice did exist for several hours, because this issue was managed so shambolically that the guidance came into effect ahead of its formal withdrawal. That is not justice—it is a betrayal of the fundamental principle of equality before the law. It would have happened under the watch of this Labour Government and this Lord Chancellor but for the intervention of the Opposition, and in particular the shadow Secretary of State for Justice.

This Bill is necessary, but it is not sufficient. Instead of acting decisively to restore public confidence, after the Labour Government have been dragged to this Chamber to act at all, they now bring forward a half measure—a meagre response that falls short of what it should be. That is why the Opposition have tabled two important amendments.

Amendment 3 would ensure that in future, sentencing guidelines on pre-sentence reports cannot simply be issued by the Sentencing Council without democratic oversight, and would instead require the consent of the Secretary of State before coming into force. Why is that now necessary? The Sentencing Council has proven itself not just in the initial measures it proposed, but in its attitude and response towards parliamentary and public scrutiny, to be unable to sustain public confidence in its work in this area. It is one thing for a public body to possess operational independence and to seek to exercise that independence on a day-to-day basis; it is quite something else for a public body to choose not to exercise good judgment and make use of that independence to act with restraint in the face of widespread Government, Opposition, parliamentary and public concern. While they do, of course, have their merits, the actions of the Sentencing Council have brought to life the potential pitfalls of unelected quangos that are deaf to the concerns of the people who pay their wages and the politicians who represent them.

While this whole affair has no doubt been humiliating for the Lord Chancellor and the Government, the damage to public confidence in the leadership of the Sentencing Council is just as great. Despite what the hon. Member for Eastbourne (Josh Babarinde) said in his remarks on Second Reading, the Sentencing Council did not agree to pause the implementation of the guidelines to allow for a period of reflection—it outright refused to do so. He has misunderstood the sequence of events. The council paused only because we would have otherwise entered into a constitutionally unsustainable situation where people were being sentenced in the courts, with guidelines being legislated against in Parliament through emergency legislation. It was that direct threat alone that caused the council to pause and demonstrated its lack of judgment.

I am afraid that we must therefore act more broadly to constrain the Sentencing Council in future, pending any wholesale changes that may be forthcoming. That is why the shadow Secretary of State put forward a Bill that would have taken the necessary steps to return accountability of the body through the Lord Chancellor while wholesale reform could be undertaken. Labour chose to oppose that Bill. Today, it is out of scope for the Opposition to seek to introduce a similarly wide amendment, and we are therefore restricted to seeking to at least restore accountability where we can in this field.

The amendment would require that guidelines on pre-sentence reports drafted by the council must be expressly approved by the Secretary of State before they come into force as definitive guidelines—a basic safeguard of democratic accountability, ensuring ministerial oversight on sensitive sentencing matters. Without our amendment, history may repeat itself: the same council will be free to bring forward ideological frameworks that Ministers will be powerless to stop before the damage is done. Had these guidelines gone unchallenged, we would have tilted sentencing based on identity politics, undermining public confidence in the entire system.

Our amendment would create a crucial safeguard, ensuring that no future set of guidelines in this field, at least, could bypass ministerial accountability. I encourage those on the Government Benches who have made clear that they wish to see accountability restored across the work of the Sentencing Council to vote in support of amendment 3; doing otherwise would make clear that they are unwilling to follow through on their concerns with action.

Amendment 4 would make clear that sentencing guidelines on pre-sentence reports must not include consideration of a defendant’s status as part of a group that has experienced historical or intergenerational trauma. Why is this necessary? It would be deeply wrong to allow collective historical grievances to influence the sentencing of an individual today. This area is the latest frontier of identity politics, with the public being told that what should be given disproportionate focus in all sorts of domains—that what matters more than what is happening today, with the whole variety of challenges facing people of all creeds and colours—is, in fact, the past. Sentencing must focus on the actions, culpability and direct personal circumstances of the defendant before the court, not on sweeping assumptions based on historical events.

We are not able in this Bill to legislate across all the workings of the criminal justice system as much as we might like to. The events of the past few months have shown that what has happened with these guidelines was not a one-off. There is a creeping, systemic attempt to inject identity politics into our judicial processes, bail decisions, probation, and even training materials. If we do not confront this now, it will embed itself deeper and deeper into the foundations of our system. It is fundamental to the rule of law that justice looks to the individual, not to the group. It is fundamental that we deal in evidence, not in ideology.

Taken together, our amendments are designed to strengthen this Bill, to ensure that it is not merely a reactive measure, but, in this narrow area at least, provides lasting protection of the principle that justice must be blind, and must be seen to be blind. The public expect justice to be equal, not preferential. Our amendments will go further in helping to secure that.

We are in this Chamber today because the Lord Chancellor was not paying attention, and was then humiliated by the recalcitrant leadership of an unelected body turning its face against parliamentary and public concern. The Government should have acted decisively and immediately and we provided them with an opportunity to do so, but they failed to take it. Even now, we are faced with a Bill that does not do the full job. Our amendments are closing the gap between what the Lord Chancellor is offering and what is necessary—decisiveness in place of timidity. I urge the whole House and the Government to support them.

[The Parliamentary Under-Secretary of State for Justice (Sir Nicholas Dakin)]

It is a pleasure to serve with you in the Chair, Mrs Cummins. I wish to thank hon and right hon. Members for the points that have been made and the amendments that have been discussed, which I shall respond to in turn. I shall speak briefly to each clause and then remind us of why we are here debating this Bill.

In the last Parliament, the Sentencing Council consulted on a revised imposition guideline, which was due to come into effect on 1 April. The revised guideline includes additional guidance on when courts should request pre-sentence reports. It notes that pre-sentence reports will “normally be considered necessary” for certain offenders, including those from an ethnic, cultural or faith minority. The “normally be considered necessary” is replaced with “may be particularly important”, which the previous Government very much welcomed.

This Government note that a pre-sentence report is necessary. They agree that disparities exist in the criminal justice system. The reasons for that are unclear, but this is a matter for the Government, accountable to Parliament and to the ballot box, to address.

In effect, the revised guideline could have led to judges deciding whether to request a pre-sentence report based on an offender’s faith or the colour of their skin. The Lord Chancellor has been clear that this would be unacceptable, as it risks differential treatment. Singling out one group over another undermines the idea that we all stand equal before the law—a principle that has been in the foundations of our justice system for centuries, and that is why she acted immediately and quickly. By preventing the Sentencing Council making guidance on pre-sentence reports with reference to personal characteristics, this Bill helps to ensure equality before the law.

Clause 1 amends section 120 of the Coroners and Justice Act 2009. It provides that sentencing guidelines may not include provision framed by reference to different personal characteristics, including race, religion, belief or cultural background. Therefore, any existing guidelines that make reference to different personal characteristics will cease to have effect and the Sentencing Council is prevented from making such provisions in guidelines in the future.

The changes made by this clause prevent the Sentencing Council making policy about when pre-sentence reports should be obtained that risks differential treatment before the law, and which could undermine public confidence in the criminal justice system.

The sentencing code is clear that courts should obtain pre-sentence reports unless, in the circumstances of the case, it is unnecessary. The clause does not affect the independent judiciary’s ability to make decisions based on the personal circumstances of an individual offender, or determine where pre-sentence reports are necessary or desirable. Nor does it stop the Sentencing Council from advising, in general terms, that pre-sentence reports are sought in cases where the court would benefit from an assessment of an offender’s personal circumstances.

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[Sir Nicholas Dakin]

The Court of Appeal has made it clear, and, as my hon. Friend said, it is right to follow Thompson in those circumstances.

While I am grateful to the right hon. and learned Member for Kenilworth and Southam for raising and rightly exploring this issue in Committee, I hope that he will not press the amendment to a vote.

Amendment 3, tabled by the right hon. Member for Newark (Robert Jenrick) on behalf of the official Opposition, would require the Sentencing Council to obtain the Secretary of State’s approval before issuing any sentencing guidelines about pre-sentence reports. Again, I referenced the helpful words of the right hon. and learned Member for Kenilworth and Southam, who said we should tread carefully in this territory and that the separation of powers needs to be very much respected. Therefore, while carefully considering the case for mandating that the Sentencing Council obtain the Secretary of State’s approval, I am not persuaded that that is appropriate at this particular time.

As the Lord Chancellor has set out, this case has highlighted that a potential democratic deficit. That is why we are currently assessing the Sentencing Council’s wider role and powers for developing sentencing guidelines, with recent developments and imposition guidelines in mind.

[Dr Mullan]

I gently suggest to the Minister that if there is a risk of a democratic deficit, surely the thing to do is to act now in the short term and unpick it later if he feels he has overreached.

[Sir Nicholas Dakin]

We certainly do not feel that we have overreached. We are acting in a timely and effective way. As the debate has demonstrated, there are issues of detail that need to be properly explored. The Lord Chancellor has done the right thing in announcing a review that will have a look at things in proper time; that will take place.

Given the special role of the Sentencing Council and the significant policy and constitutional issues involved, it is right that we take the time to consider whether more fundamental reform is needed, alongside considering wider recommendations that come out of the independent sentencing review. I am not convinced that it will be proper to deal with the issue now through this fast-tracked legislation, nor am I convinced that legislating in a piecemeal way would be helpful, noting that the amendment of the right hon. Member for Newark applies just to sentencing guidelines about pre-sentence reports when there may be other things that we need to look at. To be clear, we are keeping all options on the table and are willing to legislate further in a more comprehensive way if necessary. I therefore urge the Opposition not to press this amendment.

Amendment 4, also tabled in the right hon. Member’s name, would prevent the Sentencing Council from framing sentencing guidelines about pre-sentence reports with reference to groups that may have experienced trauma from historical racism or discrimination. While we have carefully considered the case for adding this restriction to the Bill, we are not persuaded that it is necessary. We have taken a general approach in the Bill to preventing sentencing guidelines about pre-sentence reports from being framed by reference to any personal characteristic of an offender. The Bill specifies that personal characteristics include race, religion or cultural background, but that is not an exhaustive list.

More widely, I appreciate that the right hon. Member for Newark has taken a keen interest in wider guidance across prisons and probation that touches on different experiences, including those specified in the amendment. The Government are absolutely clear on the need to ensure equality before the law. Wider work is going on to review relevant policy and guidance, and we will update practices where necessary. I therefore urge the Opposition not to press the amendment.

New clause 1 would require the Secretary of State to arrange an independent review into the restrictions the Bill places on the Sentencing Council’s ability regarding pre-sentence reports, which are framed by reference to offenders’ different personal characteristics. I thank the hon. Member for Eastbourne for tabling the new clause. Although we have carefully considered the case for such a review and I agree that it is important to carefully think through what the Bill’s effects, I am not persuaded that a review is necessary because the direct changes made by the Bill are very limited in nature.

To recap, the Bill helps protect equality before the law by ensuring no offender receives differential treatment regarding pre-sentence reports based on their personal characteristics. That reflects a fundamental principle that does not need to be reviewed. The Bill does that by restricting the powers of the Sentencing Council to issue sentencing guidelines about pre-sentence reports. It will prevent guidelines from, for example, creating a presumption around whether a pre-sentence report should be obtained based on an offender’s personal characteristics, rather than all the circumstances of the offender before the court.

For the avoidance of doubt, this Government support the use of pre-sentence reports and we have publicly committed to creating more capacity in the probation service to ensure it is able to do the valuable work that includes preparing pre-sentence reports. We are also happy to continue to work with the hon. Member for Eastbourne on disparities in the criminal justice system and the use of pre-sentence reports more generally.

We fully support the increased use of PSRs in our courts. PSRs include an assessment of the offender’s behaviour and the risk they pose, and the recommendations for sentencing options. It is a valuable tool, as many Members have said, in helping to ensure a sentence is tailored to an individual offender and their circumstances.

Equality before the law is a fundamental principle of our criminal justice system. It is the Government’s policy and belief that that should be protected. I again welcome the contribution from the Mother of the House, my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott), supported by the hon. Members for Brighton Pavilion (Siân Berry) and for Birmingham Perry Barr (Ayoub Khan), to keep our feet to the fire on tackling disproportionality. I confirm again that this Government take very seriously tackling disproportionality in the criminal justice system. That is why the Lord Chancellor has commissioned a review of the data on disparities in the justice system to better understand the drivers of the problem. I know that my right hon. Friend does not need my encouragement to keep going on this one, so I look forward to her continuing to hold us to account as we move forward.

I will also be clear on what the Bill does not do, to underscore its limited changes. Nothing in the Bill restricts the court’s pre-existing ability to request pre-sentence reports, nor the Sentencing Council 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. The Bill does not affect Court of Appeal case law about the types of cases where pre-sentence reports are necessary or desirable, as we have covered previously. There is recent relevant case law covering vulnerable defendants, pregnant women and women who have recently given birth, and young defendants. Furthermore, the Bill will not prevent judges from requesting pre-sentence reports in cases where they ordinarily would, including in appropriate cases involving, for example, pregnant women, as well as those involving young people or domestic abuse. I welcome the comments from my hon. Friend the Member for Chipping Barnet (Dan Tomlinson) on those issues.

With such considerations in mind, the Government do not consider the proposed review to be necessary. However, as the Lord Chancellor has set out, she is carrying out a review into the wider role and powers of the Sentencing Council, so I can reassure the hon. Member for Eastbourne that there will be further opportunities to discuss issues surrounding the Sentencing Council in the House. I therefore hope that he will withdraw the new clause.

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[Dr Mullan]

It is a pleasure to speak on behalf of His Majesty’s Opposition on Third Reading, following on directly from the Committee of the whole House, where Government Members rejected our amendments to strengthen the Bill. We now know the strength of the appetite on the Labour Benches to tackle this challenge properly and comprehensively here and now: there is not one. In truth, we knew that already.

The Government had an opportunity weeks ago to restore democratic accountability to the Sentencing Council through the private Member’s Bill of the shadow Secretary of State for Justice, my right hon. Friend the Member for Newark (Robert Jenrick). They rejected that opportunity, and earlier today they rejected even the more modest strengthening we proposed. That should not be a surprise. Labour has a Prime Minister who is first and foremost a lawyer, not a leader. He is a lawyer steeped in the philosophy of securing political change through legal activism. That is the very approach that the Lord Chancellor has been forced to bring in emergency legislation to curtail. That approach is why the appetite for proper action is so limited. The legislation before the House is a fig leaf to hide the truth that a Labour party led by Keir Starmer will always have to be dragged kicking and screaming to tackle the judicial activism that he has long championed—[Interruption.]

[Madam Deputy Speaker (Judith Cummins)]

Order. The shadow Minister must be heard.

[Dr Mullan]

Thank you, Madam Deputy Speaker; they do not want to hear it.

The root cause of the issue is that the Prime Minister appointed an Attorney General—the Government’s own Law Officer—who is steeped in judicial activism. The Prime Minister himself practised in a chambers that relished it and wholeheartedly supported its expansion case by case.

For anyone interested in a treatise on the risk of this approach—from someone much more qualified than me, as I am sure the House will agree—I encourage them to listen to Lord Sumption’s Reith lecture. His analysis on the divide between matters that should properly be the domain of politics and matters for law could not be more pertinent. He said:

“It is a vice of some lawyers that they talk about law as if it was a self-contained subject, something to be examined like a laboratory specimen in a test tube, but law does not occupy a world of its own. It is part of a larger system of public decision making. The rest is politics. The politics of ministers and legislators of political parties, of media and pressure groups, and of the wider electorate.”

Lord Sumption went on to say:

“The Courts have developed a broader concept of the…law which greatly enlarges their own constitutional role. They have claimed a wider supervisory authority over other organs of the State. They have inched their way towards a notion of fundamental law overriding the ordinary processes of political decision-making, and these things have inevitably carried them into the realms of legislative and ministerial policy. To adopt the famous dictum of the German military theorist Clausewitz about war, law is now the continuation of politics by other means.”

Be in no doubt: this whole sorry episode has been an exquisite further example of that mentality, this time from the Sentencing Council and its members as part of the wider judiciary establishment. The Lord Chancellor has failed to act decisively today. If she continues to refrain from taking decisive action, we will be here again and again, with the Opposition making sure, on each and every step of the way, that voters know where the sympathies of the Labour party and its leader lie: not with the ordinary, law-abiding citizen who expects equal treatment under the law and the democratically elected politicians of this country deciding on policy, but with activists and campaigning lawyers who want to wrestle control from them.

The Bill is barely adequate—barely. We will not oppose it, because it is better than nothing—and at least it tells the public everything that they need to know about those who sit on the Government Benches, and about the mentality of the man leading them.

Question put, That the Bill be now read the Third time.