Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Beith Excerpts

2nd reading
Wednesday 7th May 2025 Lords Chamber

[Lord Beith (LD)]

My Lords, I do not regard the decision of the Government to try to resolve a difference of view about the contents of the guidelines in bringing legislation before this House as improper, or as an assault on the constitution or on the judiciary, but I think it is extremely ill-advised. It is ill-advised because of the fast-tracking, because of the impression it gives about pre-sentencing reports and because the Bill is so incoherent. I want to deal with each of those things.

It seems to me that the Government have encouraged a practice, to be deplored among Governments, of finding a political problem, getting out the legislative shotgun and firing the trigger immediately, before any serious thought has been given to how a problem can be dealt with properly and effectively.

The Bill is both unnecessary and undesirable. It is undesirable because it gives the impression that pre-sentence reports are in some way conferring a privilege, whereas they are in fact assisting the judge. If in some cases they lead to someone being given a non-custodial sentence, that may well be because a non-custodial sentence is more likely to reduce re-offending on the part of that person. They are to assist the judge to make important considerations in sentencing practice which need to be made—and increasingly need to be made in a situation where our prisons are desperately overcrowded and their record in reducing reoffending, as the Minister knows all too well, is very weak indeed.

I come to the contents of the Bill. The Bill says that guidelines about pre-sentence reports

“may not include provision framed by reference to different personal characteristics of an offender … in particular … race … religion”

or

“cultural background”.

The phrase “in particular” implies that other personal characteristics, unspecified, could fall within the prohibition. The Government’s Explanatory Notes on the Bill confirm at paragraph 15 that the list in the Bill is “non-exhaustive”. That has been further confirmed by various statements that Ministers have made.

How does the Sentencing Council know if a category or cohort of offenders, other than those named in the Bill, is covered by the prohibition? It is a very bad practice to impose on a body—in this case a single body, the Sentencing Council—a law whose extent it cannot know. There is no known method of deciding what the status in relation to this law is of a characteristic which is not specified in it and which does not fall within some generally described category.

We are all aware of numerous categories to which this applies. There are pregnant women, who are already covered, of course, by R v Thompson in 2024. It is not clear to me whether, if the sentencing guidelines included a phrase drawing attention to recent case law on the subject of pregnant women being given custodial sentences, the Sentencing Council would be acting illegally. What is to happen in those circumstances?

One can think of a number of other circumstances where there is already provision in statute and which the Government appear to be saying are unaffected by the Bill, but it is not clear whether the Sentencing Council can lawfully draw attention to those features, which fall within personal characteristics. The example that I took is not named in the Bill, but it applies to the named and the unnamed characteristics. There are many of them—victims of modern slavery; victims of domestic violence; offenders brought up in local authority care; victims of sexual abuse in childhood; residents of a notorious gang-ridden housing estate characterised by intimidation; children. Nearly all those categories do not fall within those specified in the Bill but obviously ought to be in a pre-sentence report. What happens if the Sentencing Council draws attention to any of those in any future version of the guidelines which emerges from this process? The Bill is a mess.

We have a crisis of re-offending, a crisis in our prisons and a sentencing review led by David Gauke. Those are the sorts of things that we need to be talking about. There is no crisis in the Sentencing Council; there is a disagreement about the form of words to be used to give guidance to courts on sentencing. However, that does not justify fast-tracking of Bills, which attenuates proper debate and discussion and could lead to the situation described by the noble and learned Lord, Lord Hope, of the Government being reluctant to accept an amendment because the fast-tracking would be upset by the Bill going back to the Commons. That is nonsense, because it would be done in a day. The noble and learned Lord’s guidance was very wise. I hope that we are not deterred from amending the Bill by the need for it to go back to the other House. That would make a nonsense of what we are here to do and the responsibilities that we have. In the Constitution Committee report, which is now technically published but not yet widely seen, it makes clear its objections to that fast-tracking process.

We have all these crises and problems in relation to our prison system and sentencing policy, yet here we have a Bill which does nothing to address any of them and is an ill-advised move in circumstances which could be resolved in a much better way.

Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Beith Excerpts

Committee stage
Monday 19th May 2025 Grand Committee

I remember on this subject that we talked about the impact on children caught up in the criminal justice system because a mother is impacted by it. The Joint Committee on Human Rights did some work that alluded to that, and we heard some extremely moving evidence from the grandmother of children whose mother was detained. I hope that, working together, we can find our way through this—otherwise, we are just going to impose by legislation what is, frankly, a really difficult mess.

[Lord Beith (LD)]

My Amendment 14 in this group, like all the others, seeks to probe and challenge the uncertainty surrounding the definition on which the whole Bill depends. I welcome the amendments of the noble Baroness, Lady Chakrabarti, in that respect. I am particularly attracted by Amendment 5, which goes to the fundamentals of the problem. I hope that will get discussed in the course of our proceedings.

I am a member of the Constitution Committee, like several noble Lords present today, and I share the committee’s concerns about the legislative uncertainty and unhelpful precedent set by the inclusion and non-definition of personal characteristics. The committee said that this clause was insufficiently clear and introduced legislative uncertainty. The list of personal characteristics is, as the Government indicate in their Explanatory Note, non-exhaustive, which leaves a legislative hole. The Sentencing Council is placed under a prohibition: it must not frame guidelines by reference to different personal characteristics. But because the list is non-exhaustive, the council has no way of knowing what other personal characteristics fall within the prohibition.

It is a pretty basic principle of the rule of law that, in order that people should obey the law, they should be able to find out what the law is—but there is no way to find out what are acceptable other personal characteristics, and correspondence with Select Committees is in no way definitive in that respect. You create a body, in the form of the Sentencing Council, that is placed under a prohibition and cannot know the full extent of that prohibition. It is pretty weird—and, I think, very bad—legislative practice.

In his letter to the committee, the Minister indicates a number of things that, in his view, are not personal characteristics, including being a sole or primary carer or a victim of domestic violence. Where is the authority in the Bill to exclude those characteristics but not others, such as autism, neurodiversity or having a background of being brought up in local authority care? There is a whole number of things that might be considered personal characteristics or might not. What is the council intended to do about that?

My Amendment 14 addresses an even more confusing aspect of the personal characteristics problem. Several cases taken to appeal have set out where circumstances or characteristics should have been taken into account in deciding whether to seek a pre-sentence report: pregnancy in Thompson, 2024; modern slavery in Kurmekaj, 2024; and young offenders in Meanley, 2022—I think. A sentencing judge is expected to take account of those cases when deciding whether to seek a pre-sentence report. Of course, as the Minister will point out, the Bill does not directly impact on the court, or on the judge who is passing sentence. In any formal sense it does not change the criteria that the judge will consider while sentencing. But that is a very formal view of that matter—it is difficult to escape the conclusion that this discussion and the passing of this legislation might not have some influence on how judges view their freedom to seek pre-sentencing reports.

What can the Sentencing Council do about this? It appears to me that the effect of the Bill is that the Sentencing Council would be in trouble if it drew attention to the cases to which I have referred and sought to make judges aware that they are relevant to those particular circumstances—autism, a background of local authority care, and all sorts of other circumstances, such as being brought up on a particularly rough estate where there is known to be gangland activity and much likelihood of falling under the influence of violence if they had not carried out the offence. There are all sorts of circumstances like that which might be treated as personal characteristics, but to refer to existing cases that define circumstances in which pre-sentence reports should be used appears to be something that the Sentencing Council is precluded from doing. That does not make any sense to me at all, which is why I have drafted the amendment in that form.

I believe that, as the noble Baroness, Lady Chakrabarti, said, damage has been done to the authority of the Sentencing Council, particularly if we do not amend the Bill to make it legally coherent. The Sentencing Council sought to address a recognised and widely admitted problem about the disproportionate levels of custody sentences imposed on some sections of the community from particular backgrounds. In doing so, it unintentionally created what turned out to be a political problem, and the consequence of that is a disproportionate response from the Government and legislation, which, frankly, does not make sense and will result in legal confusion.

We ought to remember that the sentencing legislation already in existence, the Sentencing Act 2020, makes pre-sentence reports something courts should seek unless they deem it unnecessary to do so. Here we are, creating an aura of doubt around what judges should do when those very circumstances arise, which may be contributing to the disproportionate presence in our jails of people from certain backgrounds. That is careless and shows a lack of awareness of the unintended effects legislation can have. Therefore, we should amend the Bill, make it clearer and try to avoid some of those consequences.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, before I come to the substance of the debate, may I make one more plea to the Government? I agree with the noble Baroness, Lady Chakrabarti, and others in their trenchant criticisms of the Bill. I conclude—and I invite the Government now, even at this late stage, to conclude—that the Bill ought not to proceed before the publication of David Gauke’s Independent Sentencing Review, expected as early as this week. It could and should be withdrawn, or at least paused, to await that report and to allow time for reflection, both on the report and on the Bill in the light of it.

The Government’s own website, in describing the terms of reference for the Gauke review, says:

“The review will provide long term solutions for our justice system by”,


and then the sixth bullet point says,

“considering whether the sentencing framework should be amended to take into account the specific needs or vulnerabilities of specific cohorts, such as young adult offenders, older offenders, and women”,

which is precisely what the in-position guideline, approved by the Sentencing Council and now largely to be prohibited by the Bill, concluded should happen.

The Bill contains a number of difficulties which are addressed in a number of the amendments proposed by noble Lords from around the Committee, all of which are well within the terms of reference of the Gauke review. The first is highlighted by the noble Baroness, Lady Chakrabarti, and is presented by the shortage of resources, about which we all know, which has resulted in a failure to meet the clear and uncontroversial need for judges to have the benefit of full and well-prepared pre-sentence reports for all defendants—certainly for all defendants at risk of custodial sentences. Then there is the central difficulty of the Bill’s ruling out prioritising pre-sentence reports for particular cohorts, such as black defendants, in the face of very strong evidence—cited by the noble Baroness, Lady Chakrabarti—such as that produced by the Lammy review, that black defendants are more likely to be sent to prison than their white counterparts, and more likely to be sentenced to longer terms.

--- Later in debate ---

We know that the risks to a woman’s pregnancy are increased if she is in custody. That is one reason why we asked the independent sentencing review to look at the needs of vulnerable groups, such as women, and we await its report. More widely, the Lord Chancellor and I have established a Women’s Justice Board, which has met twice this year. Its objective is clear and ambitious: to reduce the number of women going to prison and increase the number supported in the community. One of the initial key areas of focus for the board is improving outcomes for pregnant women and mothers of young children across the criminal justice system. I thank the noble Baroness, Lady Hollins, for her contribution and the professional and academic expertise she brings to this debate. I hope that this has reassured the right reverend Prelate and that she will not press her amendment.

[Lord Beith (LD)]

Can the Minister clarify something he has not covered? It is how we deal with things that perhaps the Government regard as personal characteristics but that are not listed in the Bill, although they could fall within the non-exhaustive character of that provision in the Bill. Is it the Government’s view that the Sentencing Council has some way of knowing what such characteristics are? Various examples have been mentioned, such as autism or having been brought up in local authority care, which I mentioned. Would the council be acting illegally if it added further personal characteristics to those it was issuing guidance about when the Government did not agree with it?

[Lord Timpson (Lab)]

I thank the noble Lord for the question. So I get the answer technically correct, I will write to him and other Members here.

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[Lord Burnett of Maldon (CB)]

My Lords, I shall make one or two observations on this group. I echo what the noble Baroness, Lady Hamwee, said, but, before anyone considers this additional process, it is important to have in mind what already exists. All guidelines that the Sentencing Council eventually issues are subject to extensive consultation—with the public consultation and with interested bodies—but, more importantly, they are subject to political consultation. That arises in two quite different contexts.

The first is that the Lord Chancellor and Secretary of State for Justice are consulted. Of course, that happened in connection with this guideline, which became controversial although it was not seen as controversial by Ministers who were then in the Ministry of Justice. That is not the end of the political involvement, though, because a statutory consultee for all sentencing guidelines is the Justice Committee of the House of Commons. Again, in this particular instance, the Justice Committee was consulted. As all here know, that committee comprises Members of Parliament from a broad cross-section of parties, and, as it happens, they, too, thought it uncontroversial. So there are those two political consultees. However, that is not the end of the matter because the Secretary of State for Justice and Lord Chancellor have on the Sentencing Council itself an observer who is able, on behalf of the ministry, to raise any matters of concern.

So, with respect to the noble Lord, Lord Sandhurst, and this amendment, it seems to me that upsetting the extremely carefully calibrated scheme enacted by the 2009 Act is unnecessary.

[Lord Beith (LD)]

My Lords, I do not recollect a regulation-making power that requires the Secretary of State to bring forward the regulations. Normally, such powers are permissive—the Secretary of State “may” bring forward regulations—or indicate an area where there must be regulations but the precise ones are brought forward at a decision by the Secretary of State.

More generally, I worry that, per the phrase used by the noble Baroness, Lady Chakrabarti, this looks a bit like clipping the wings of the Sentencing Council rather than recognising that it is a valuable arm’s-length body with processes—they have just been helpfully described by the noble and learned Lord, Lord Burnett—that ought to serve the purpose of ensuring that the Government are not blindsided by things that come from the Sentencing Council; indeed, they need not have been in this case. Going much further and introducing this fairly complex mechanism runs the risk of making the Sentencing Council appear less authoritative to those who have to take account of what it does.

Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Beith Excerpts

Report stage
Wednesday 4th June 2025 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, in moving Amendment 1 in my name, I begin with an apology. I have not previously intervened in the debates on the Bill. Unfortunately, long-standing commitments, including professional commitments, prevented me from participating both at Second Reading and in Committee. That, in fact, is one of the disadvantages, albeit a minor one, of so-called emergency legislation introduced at short notice. More serious disadvantages are, of course, the curtailment of time for reflection and a reduction in the time for consultation. However, I have had the opportunity of studying the Hansard reports of what was said in this House on both occasions, and what was said in the House of Commons.

My main purpose today is to speak briefly to Amendment 1. I begin by commending the admirable speech of the noble and learned Lord, Lord Phillips of Worth Matravers, at col. 1614, to those of your Lordships who, like me, were not present at the Second Reading debate. His speech was a model of brevity and conciseness, and I agree with everything that the noble and learned Lord said. He said that he did not believe that the guidelines introduced two-tier justice. I agree with that view. He said that he did not believe that the introduction of the guidelines would severely damage confidence in our criminal justice system. I share that view.

The noble and learned Lord, Lord Phillips, considered that there was no need for this Bill. I am of the same opinion. In my view, this legislation has been triggered by an unhappy combination of political point-scoring and political back-guarding—personal characteristics of an unwelcome kind, albeit not falling within the statutory definition in the Bill. The noble and learned Lord concluded by saying that we should reluctantly accept this Bill but seek to improve it by way of amendment, and that is what I seek to do.

My amendment is in substance a statement of principle—in fact, one that reflects policy, albeit, because of resource constraints, not the current practice. But given the fact that we have this Bill, I suggest that there is merit in framing the policy in explicit statutory and positive language.

I suspect that everyone who has experience in this field would agree that in the great majority of cases where an offender is facing the possibility of a custodial or a community sentence, it is highly desirable that the sentencer should have available a properly considered pre-sentence report—but not one which is the product of a few minutes of discussion in the cells. What is required is a considered and researched pre-sentence report by a qualified member of the Probation Service. That implies a Probation Service which is properly staffed and properly financed to address the required workload.

I deeply regret that, in recent years, there has been a serious decline in the number of pre-sentence reports, and I have in mind the decline of 42%, from 160,000 to 90,000, between 2015 and 2022, mentioned by the noble Lord, Lord Bach, in the Second Reading debate, and by others too. I acknowledge, with very great regret, that one of the immediate causes of this decline in the availability of proper reports was the policy of the Government whom I supported. I will add too, if I may, that the existence of a properly financed and staffed Probation Service is fundamental to the success of the sentencing reforms proposed by Mr David Gauke.

It should be self-evident that the pre-sentence report addresses all the relevant considerations that may help the sentencer to determine the appropriate sentence. That is what my amendment states explicitly. Such considerations may include the individual circumstances and the personal characteristics of an offender. I accept that, as became apparent in the debate, especially in Committee, there is a distinction between the two concepts, although there is a very high degree of overlap, so both criteria should be included. My amendment does that, with a definition to be found in Amendment 7. Guidelines are there to ensure uniformity in the practice of the courts.

Obviously, there is concern about the availability of resources: hence, the impossibility of making reports mandatory. It was the council’s concern about the inadequacy of resources that caused the guidelines to identify specific cohorts as having priority. But drafting the guidance in the positive language of my amendment meets the expressed concern of the critics of the guidelines. My amendment provides for the guidelines to be general in their application, and might encourage the Government to ensure that additional resources are made available to the Probation Service, so that pre-sentence reports become the norm in all appropriate cases. Amending the Bill in the modest way that I have proposed will, I hope, make a small contribution to the proper administration of criminal justice in this country. I beg to move.

[Lord Beith (LD)]

My Lords, I agree very much with what the noble Viscount has said. His amendment, like others in this group, would give some helpful clarity to an extremely unclear piece of legislation. I think we are about to make bad law, because the Government have been unable or unwilling to define what “personal characteristics” are. We do not know what will fall within the range of prohibitions placed on the Sentencing Council. It will be left with an undefined scope and an undefined extent. Race, religion and belief, or cultural background, whatever that is, are listed, but after that it becomes a matter for speculation as to what might be included.

The Government insist that the list that appears in the Bill is non-exhaustive. In a letter sent to several of us, the Minister states, but without citing any authority, that “personal characteristics” include sex, gender identity, age, physical disability and pregnancy or “other similar conditions”. What is similar to pregnancy? I have been puzzling over that for some time and I am not quite sure.

The Minister did not mention autism, a background of local authority care or experience of sexual abuse, although in the latter case the Government said, in a different letter, that it is not a personal characteristic to have been a victim, perhaps a repeated victim, of sexual abuse. What is included in the list appears to be in the minds of Ministers, or whatever may appear in the minds of Ministers at some later date, leaving the Sentencing Council and, indirectly, judges and magistrates in some confusion as to what the Government intended.

I think and hope that, in making decisions about whether to call for a pre-sentence report, courts will not be influenced by this whole row—it would be very unfortunate if they were—but there is just a slight risk that this may become an area in which courts start to think, “This is a bit political, we’d better not go there”. That must not happen. The still-existing freedom of courts to decide to have a pre-sentence report is not directly affected by the Bill. My worry is that it might have an indirect effect.

Law can have consequences. I foresee the day when a non-exhaustive list of prohibitions will appear in some other Bill on some other subject. What will happen then? We will be told that non-exhaustive lists of prohibited actions are an established practice and appeared in the Sentencing Guidelines (Pre-sentence Reports) Act 2025. It will become a precedent that will certainly get used on some future occasion, and I think that is a dangerous thing to be happening.

My noble friend’s Amendment 2 restores the Sentencing Council’s freedom, if there is good cause, to issue guidelines that refer to personal characteristics. I urge support for it and, if he presses it to a vote, which I hope he will, he will certainly have my vote and, I hope, those of others who are concerned to protect the ability of the Sentencing Council, a body of some distinction, to do its job in the light of sensible judgment, following discussion with the Government wherever that is necessary or appropriate.

I turn finally to Amendment 9, which is in my name. The Minister has asserted that pregnancy is a personal characteristic, falling within the restrictions imposed by Section 2 of the Bill. But there is case law accepting pregnancy as a reason to order a pre-sentence report, in R v Thompson 2024. Modern slavery was similarly referred to as grounds for a pre-sentencing report in R v Kurmekaj 2024, and being a young offender is dealt with in R v Meanley 2022.

It is difficult to accept that the case law should be overridden by the Bill if it becomes an Act. The Minister has asserted that it is overridden, asserting in his letter that the Bill would make

“such direction about obtaining PSRs across existing guidelines unlawful”.

“Unlawful” is the word used in the Minister’s letter. Nevertheless, he claimed that

“it will not prevent guidelines from reminding sentencers in more general terms that PSRs will be necessary”

when

“an assessment of the offender’s personal circumstances would be beneficial”.

So where does that leave us? It leaves us in a tangle of legal uncertainty, and there is no excuse for that. I suggest that the Minister should accept my amendment, leaving the Sentencing Council free to issue guidelines that reflect and draw attention to well-established case law on the value and importance of pre-sentence reports in cases of the kinds I referred to.

[Baroness Hamwee (LD)]

My Lords, I confess that I am still struggling to understand this Bill, despite it having only one clause. The Minister was as helpful as he could be in Committee, and we all know his pedigree, but he has been dealt a very difficult hand. I think this is a bad Bill and, as my noble friend has just said, it is going to be bad law. We all know the political background to it. On Monday, at Second Reading of the Border Security, Asylum and Immigration Bill, one noble Lord used the delicate word, which I will repeat, “presentational”. I think that is quite a good synonym. The Constitution Committee has commented on the Bill, picking up very much the points that the noble Viscount and my noble friend made and the response from the Ministry of Justice has not, I think, taken us any further.

In Committee, I asked what was meant by the words “framed by reference to”. I still do not really understand them. This has caused me to table Amendment 3, although I realise it is a bit risky pursuing this, because we may be told from the Dispatch Box that the Bill is more restrictive than we would actually want to see, and it is arguable that as it stands, the guidelines can refer to characteristics depending on the law which is being shaped.

The legislation should be clear and certain—points which were made very clearly by the Constitution Committee—especially in this sort of situation. It is curious that the Bill seeks to pit the state against a body such as the Sentencing Council.

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[The Minister of State, Ministry of Justice (Lord Timpson) (Lab)]

I am grateful to noble Lords for their continued and careful consideration of this Bill. Before I turn to each amendment in this group, I want to briefly recap why we have brought the Bill forward.

In revising its imposition guideline, the Sentencing Council included text that suggests that a pre-sentence report will

“normally be considered necessary”

if an offender belongs to certain cohorts, including some that specifically refer to offenders’ personal characteristics, such as those

“from an ethnic minority, cultural minority, and/or faith minority community”.

We believe that the approach taken through this guidance risks offenders receiving differential access to pre-sentence reports based on their personal characteristics. It also means that the Sentencing Council is making policy on who should get a pre-sentence report, when this is properly a matter for Ministers and Parliament to decide. For these reasons, we have introduced this Bill to stop this guidance coming into force and prevent the Sentencing Council making similar guidance in the future.

I turn to the amendments in this group. First, there are those amendments which seek to give the Sentencing Council more discretion to include some factors that are based on offenders’ different personal characteristics. Amendments 1 and 7, from the noble Viscount, Lord Hailsham, with contributions from the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Carter, seek to give the Sentencing Council more discretion. The Sentencing Council could still make guidelines with reference to personal characteristics but only if the guidelines also said that those personal characteristics had to be relevant to the ultimate sentencing decision.

Amendments 2 and 4, in the name of the noble Lord, Lord Marks, would give the Sentencing Council discretion to include factors based on offenders’ different personal characteristics within relevant guidelines, if it felt that doing so would avoid inequalities in sentencing outcomes. Amendment 9, in the name of the noble Lord, Lord Beith, is intended to provide that the Bill does not prevent the Sentencing Council including provision within relevant guidelines that reflects existing case law about pre-sentence reports.

During Committee, I committed to take away the concerns expressed by noble Lords about the Bill’s current approach. I have carefully reflected on where there are alternative ways of meeting the Bill’s fundamental objective—to ensure equality before the law. However, ultimately, I remain confident that the current approach taken within the Bill is the best and clearest way to meet this objective. This is because, if these amendments were accepted, the Sentencing Council would be able to continue to produce guidelines that could risk differential access to pre-sentence reports. In doing so, the Sentencing Council would be making policy on a matter that is within the proper remit of Ministers and Parliament. Therefore, we do not believe that these amendments are beneficial, as they would undermine the Bill’s objectives.

I turn to the amendments of the noble Baroness, Lady Hamwee. Amendment 3 would change some of the drafting used in Clause 1. The Bill states that sentencing guidelines about pre-sentence reports may not include

“provision framed by reference to”

offenders’ personal characteristics. Instead, if the noble Baroness’s amendment were to be accepted, the Bill would state that any provision which is “solely based on” offenders’ personal characteristics cannot be included in relevant guidelines. The noble Baroness’s Amendment 6 seeks to add text to the Bill that confirms that it does not prevent the Sentencing Council producing relevant guidelines. This suggests that a pre-sentence report would be ordered where an assessment of an offender’s personal circumstances would be beneficial to the court. I have no doubt that the noble Baroness has suggested these amendments in the spirit of attempting to make the Bill as clear as possible, and I am grateful for the constructive challenge. I have carefully considered both amendments and we ultimately believe that they would not improve the Bill’s drafting.

For Amendment 3, this is because the Bill is already sufficiently clear. The drafting, which would prevent the Sentencing Council making sentencing guidelines about pre-sentence reports

“framed by reference to different personal characteristics”,

means that the council cannot include any text within relevant guidelines that refers to offenders’ personal characteristics. This effectively captures our intent, which is to ensure equality before the law. For Amendment 6, the Bill as drafted does not prevent the Sentencing Council including text within relevant guidelines that suggests to sentencers, 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. We have been clear throughout the debates and in supporting material of the benefits of pre-sentence reports. We believe our intention is clear from the language we have used in the Bill. In the spirit of keeping the Bill short and simple, we do not consider it necessary to explicitly state within the Bill things that it does not do. The Bill does not prevent sentencing guidelines encouraging pre-sentence reports based on an offenders’ personal circumstances.

Amendment 8, tabled by the right reverend Prelate the Bishop of Gloucester, seeks to ensure sentencing guidelines can continue to advise sentencers to seek pre-sentence reports in cases involving offenders who are pregnant or who are primary carers of young children. I should like to start by thanking the right reverend Prelate for raising this point. I have long been an advocate for better support for pregnant women in prison and for those women who are primary carers of young children, ever since I first sat outside HMP Styal with my mother, taking foster children to see their mums on visits. I know all too well that so many of the foster children who I lived with had mothers in prison who were often victims of considerable trauma and abuse, and they were often vulnerable, addicted and mentally ill. Many found imprisonment had life-changing impacts, for not only them but their children.

Around two-thirds of female offenders sentenced to custody receive short sentences and around the same number are victims of domestic abuse. I proudly chair the Women’s Justice Board, which was set up last year with the aim of closing a women’s prison and addressing the specific needs of this cohort. The sentencing review’s recommendations on short, deferred and suspended sentences will reduce the number of women in prison. This is an important step towards that objective.

However, in the context of this specific Bill, following the Committee debate, I have further considered whether it would be appropriate to add an exclusion. Amendment 8 would allow the Sentencing Council to retain existing wording across relevant guidelines that suggests sentencers request pre-sentence reports for pregnant and post-natal offenders. We remain satisfied that the Bill’s current approach is the right one. It ensures sentencing guidelines do not risk preferential access to pre-sentence reports based on offenders’ personal characteristics. In doing so, it prevents the Sentencing Council making policy on who should get a pre-sentence report.

To be absolutely clear, this does not mean we think pregnant or post-natal women should not be receiving pre-sentence reports. We fully support the ability of sentencers to make their own judgment on whether to order a pre-sentence report, based on their consideration of the unique circumstances of individual cases. That is why nothing in the Bill stops courts requesting pre-sentence reports in any case where they ordinarily would do so. This includes appropriate cases involving pregnant or post-natal women, as well as other individuals who may be vulnerable for a number of reasons.

The key distinction here is that we cannot support any suggestion within sentencing guidelines that access to pre-sentence reports should be based on offenders’ personal characteristics. It is for this reason that we have been clear throughout the Bill’s passage that it does not affect the existing obligation on courts, under section 30 of the Sentencing Code, to obtain a pre-sentence report, unless considered unnecessary.

I want to re-emphasise that, following the Bill’s passage, the Sentencing Council can still remind sentencers in general terms that pre-sentence reports are necessary when, among other things, a full assessment of an offender’s personal circumstances would be beneficial. I would like to clarify that, even without a pre-sentence report, alternatives to custody can be considered by a sentencing court. Pre-sentence reports are by no means the only route through which alternatives to custody are considered, and women are diverted away from custody.

I hope I have reassured noble Lords about the Government’s sentiment with regard to better support for pregnant women and primary carers currently in prison and about our clear policy intention to reduce the number of women in prison. I therefore encourage noble Lords not to press their amendments in this group.

[Lord Beith (LD)]

Before the Minister sits down, could he clarify something for me, because he has made two apparently conflicting statements in the course of the correspondence? One is that it would be unlawful—and that is his word—for the Sentencing Council to frame guidelines in a way that reflected the existing case law that pregnant women should be the subject of pre-sentence reports. But he has just said, and has said on other occasions also, that the Sentencing Council can issue guidelines or statements of some kind which draw attention to that pre-existing case law. The purpose of my amendment was to leave the Sentencing Council free to do so. How can he, at one and the same time, say that this would be unlawful and then describe this way of carrying it out?

[Lord Timpson (Lab)]

These are different things and we do not want to link them. The Bill intentionally deals with the Sentencing Council, not the Court of Appeal. The Bill as drafted achieves its aims simply, and we do not want to overcomplicate things.