Sentencing Bill

Lord Burnett of Maldon Excerpts

2nd reading
Wednesday 12th November 2025 Lords Chamber

[Lord Burnett of Maldon (CB)]

My Lords, I start by declaring some interests. I was on the independent panel chaired by David Gauke which produced a preliminary short review in February, History and Trends in Sentencing. I shall return to that, if I may. It then produced a final report in May, many of the recommendations of which underpinned the proposals in the Bill.

I was also president of the Sentencing Council for six years while serving as Lord Chief Justice. The Bill has two clauses relating to the Sentencing Council. I broadly welcome the proposals relating to sentencing. One or two of them might be tidied up but it will come as no surprise to your Lordships that I regard the clauses relating to the Sentencing Council as misconceived.

As is well known, the impetus for this sentencing legislation flows from our prisons being full. There is no prospect of capacity being expanded sufficiently to cope with the demand in the coming years. Urgent steps must be taken, or the system will fall over.

There are a number of reasons why the prison population has doubled between 1993 and today to now over 87,000 people. At the heart of them has been sentence inflation. In 1993, the average custodial sentence for indictable offences was 16 months; by June 2024, it was 22 and a half months. There have been substantial increases in the minimum terms that those subject to life sentences must serve, driven by legislative change in 2003 by Schedule 21 to the Criminal Justice Act, which governed murder. That pulled up all sentences for violent offending, which in turn fed over into sentences more generally. The number of life sentences has substantially increased, as have sentences over 10 years, despite serious crime having fallen. The detail is in the history and trends report to which I referred.

Parliament has also repeatedly legislated to increase maximum sentences. This has all happened at a time when political and much public discourse has focused on the punitive element of sentencing while marginalising other important purposes of sentencing, which include reducing reoffending and rehabilitating offenders. With respect to my good friend, the noble Lord, Lord Sandhurst, we have heard little of that this afternoon.

The impact of sentencing of different types is studied around the world, and thus rich data are available on the impact of different sentences on reducing crime. There is compelling evidence that non-custodial sentencing—of course, with a proper punitive element—reduces reoffending when short prison sentences do not, and that lengthening sentence does not reduce reoffending.

Countries across Europe—as well as Texas, of which we have heard already—have shown that reduced sentences and less use of immediate custody reduce not only prison populations but crime. So I particularly welcome the measures in the Bill to restrict further the use of short, immediate terms of imprisonment—subject, of course, to necessary exceptions—and those to enable sentences to be deferred for 12 rather than six months, and to increase to three years rather than two the period of imprisonment that may be suspended.

It is important that both community sentences and suspended sentences should be seen to include a proper element of punishment. The expansion of the list of requirements that may be imposed as a punishment is a positive step. Perhaps the Government would immediately also consider adding a foreign travel ban to that list. These are steps in the right direction to reduce the unnecessary and, frankly, counterproductive use of custody. They do not tackle sentence inflation, which I earnestly hope but doubt that our political class will have the courage to confront collectively before too long.

The Government have broadly adopted our recommendations for rationalising release dates and introducing incentives to earn release, as well as measures to contain the explosion in the recall population in prisons. They have gone further than we recommended with removing foreign national offenders. All three should reduce the prison population. There may be room for some debate about whether foreign national offenders should be deported immediately or at least serve part of their sentence to ensure that there is a punitive element.

While some may be concerned about allowing release on licence of fixed-term prisoners who have behaved well after serving a third of their sentences, those of your Lordships with a longer memory than mine will recall that the Criminal Justice Act 1967 provided for release after a third, and it was that way for very many years.

It is clear that the changes proposed in the Bill will work only if the Probation Service can undertake the additional work required of it. That will require increased numbers and funding—to that extent, I agree with the noble Lord, Lord Sandhurst. But it also depends on technology, especially tagging technology. That must work, and it is necessary that any breaches are enforced. So, there will be much work to be done on delivery: work that the Minister is especially well equipped to oversee as the former chief executive of a substantial business. I wish him well in that task.

In the relatively short time left to me, I will make some observations on the clauses relating to the Sentencing Council, which echo those already made by the noble Lord, Lord Beith. Clause 19 requires the Sentencing Council to seek the consent of the Lord Chancellor and the Lady Chief Justice before publishing a guideline or publishing amendments to a guideline. If both do not consent, publication is blocked, the guideline will not come into force and amendments to an existing guideline will not take effect. This is no more and no less than a political veto in the hands of the Lord Chancellor. No Lord Chief Justice would want a power of veto, nor, frankly, ever exercise it. This power would enable the Lord Chancellor, and possibly a less benign Lord Chancellor than we have today, to stop some or all of the work of the Sentencing Council. That cannot be right.

Moreover, to fail to consent would be extraordinary given the careful construction of the scheme under which the Sentencing Council operates. Having undertaken deep research and wide consultation, it publishes a draft of its proposals. It calls for comments from anybody who wishes to provide them and consults further, widely. Both the Lord Chancellor and the Justice Committee of the House of Commons are statutory consultees. The Lord Chancellor has a representative who attends all meetings of the Sentencing Council to convey the governmental view. The membership of the council is carefully balanced by statute to reflect a broad range of interests. The DPP is there, and so too is a chief constable and a voice for the victims, for example.

I am puzzled that it is said that there needs to be a political override. There has never been one before in this area, and that is for very good reason. Before the Sentencing Council, there was a non-statutory body that worked as its precursor, and before that, the exclusive jurisdiction for setting guidelines for different offences rested with the Criminal Division of the Court of Appeal. So, to the extent that the Sentencing Council and its predecessor, a non-statutory body, which were established at the instigation and with the full consent of the judiciary, impact upon anybody’s constitutional responsibilities, they are those of the judiciary, not the Executive.

I hope noble Lords might bear with me for another 30 seconds or so. I believe that the Bill would be better without Clause 19. If something has to stay, it would be better inverted, so that the Sentencing Council may publish unless both the Lord Chancellor and Lord Chief Justice object.

What can one say about Clause 18? Perhaps the Minister can explain what it is all about. It is silent on what happens if the Lord Chancellor does not approve the business plan. This looks to be a controlling mechanism, although how it would work is opaque. The Explanatory Notes are coy on the subject—that might be the best way of putting it—and the Minister only touched on it glancingly in his opening.

I finished on a slightly sour note, but I wish to emphasise that I do not want that to distract from the fact that I support the aspects of the Sentencing Bill that deal with sentencing rather than the Sentencing Council. I apologise for overrunning.

Sentencing Bill

Lord Burnett of Maldon Excerpts

Committee stage
Monday 1st December 2025 Lords Chamber

[Baroness Porter of Fulwood (Con)]

My Lords, I also support Amendment 93B in the name of my noble friend Lady Neville-Rolfe.

It is well established that the literacy and numeracy rates for those who end up committing crime are much lower than those in the general population. A Ministry of Justice report into prison education found that 57% of adult prisoners taking initial assessments had literacy levels below those expected of an 11 year-old.

In his review, David Gauke explicitly references the use of purposeful activity in the Texan system and positive engagement with it as being linked to serving less time inside prison; yet under these reforms there is no such requirement. My noble friend Lady Neville-Rolfe has already referenced Charlie Taylor’s assessment of the current system. David Gauke also points out in his review just how much of a problem access to these services is in many of our prisons:

“His Majesty’s Inspectorate of Prisons’ annual report for 2022-2023 found that standards of purposeful activity were rated poor or insufficiently good in all but one of the adult male prisons inspected”.


Despite the measures in the Bill, there will still be a growing prison population. This will make delivering these services even more challenging, but it has to be addressed. We need to make sure that people who are spending time in prison are spending it as constructively as they can. Focusing on this and prioritising resource to help reduce the chances of people reoffending is the best way of reducing crime over the longer term. I would argue accountability and mandatory requirements are what ultimately drive how we place resources.

[Lord Burnett of Maldon (CB)]

My Lords, I was not intending to intervene at all in this group, but could I just try to inject an element of reality into Amendment 86A, which the noble Lord, Lord Jackson, proposes? It requires the courts service to record and retain, in respect of all offenders convicted and sentenced in the Crown Court and magistrates’ court, the details that have been referred to: country of birth, nationality, ethnicity, immigration status, and the offences themselves.

It is important to remind the Committee that, in the magistrates’ courts, hundreds of thousands of minor offences are dealt with every year. For example, there are hundreds of thousands of motoring offences such as speeding, careless driving, not having insurance and matters of that sort, as well as tens or hundreds of thousands of failures to pay a TV licence. The vast majority of those cases do not trouble a court in the normal sense, in that there is no hearing in a court. They are dealt with under the single justice procedure. Almost all of them, save those that are contested, are dealt with, essentially, on the papers.

The information identified in the proposed amendment is not available at the moment, and it is difficult to see how it might be made available. I cannot, for the moment, think of a way that it could be done without exponentially increasing the burden on the system generally and imposing huge burdens on those who have been prosecuted for speeding or not having a TV licence, and so forth. Unless there were compulsion of some sort for this information to be given, nothing could sensibly happen. I do not seek to express a view on the merits of collecting such information, or at least parts of it, for some cases; that already happens, as in the Crown Court, to some extent. However, the breadth of this amendment travels into the area of unreality, I regret to say.

[Lord Sandhurst (Con)]

My Lords, I am grateful to all noble Lords who have tabled amendments and spoken on the topic of transparency. It is an important aspect of the criminal justice system that it is accountable and instils trust in the public, who rely on it.

Beginning with Amendment 58A in the name of the noble Baroness, Lady Hamwee, we on these Benches broadly support the aim of this measure. Knowing the affordability and accessibility of treatments and activities is an important part of ensuring that the probation system is working. Such matters are vital to persons on probation, and they can make a real contribution to those who complete their probation periods. Regional inequalities should be known and addressed, so that all who are subject to such orders have the same means with which to complete their sentence. That may be an ideal, but it is what we should be aiming for.

I offer support from these Benches for the amendments in the name of my noble friend Lord Jackson of Peterborough. There may indeed be real practical issues and objections, as the noble and learned Lord, Lord Burnett, has reminded us of, with all his experience. He is right to draw our attention to the practical difficulties in identifying and recording ethnicity and other information—that may well be for another day. That is a fundamental objection; none the less, we would argue that the Government should certainly be looking at what information can be sensibly obtained in this area.

I was somewhat surprised to hear the noble Lord, Lord Marks, say “yes” to the collection of data in principle but “no” to its publication. That is what I think he said. Who will see it, then? Just civil servants and Ministers? Not Members of Parliament? Not Members of this House? If collected, it will certainly leak. Maybe I misunderstood him.

Sentencing Bill

Lord Burnett of Maldon Excerpts

Committee stage
Monday 1st December 2025 Lords Chamber

[Lord Jackson of Peterborough (Con)]

My Lords, I will also oppose Clauses 18 and 19 standing part of the Bill, and I oppose Amendments 81, 82 and 83 in the names of the noble and learned Lords, Lord Burnett of Maldon and Lord Thomas of Cwmgiedd, for reasons which I will allude to and develop later.

As your Lordships’ Committee will know, the Sentencing Council exceeded its powers earlier this year when it issued the Imposition of Community and Custodial Sentences guidelines, to come into effect on 1 April 2025, in respect of pre-sentence reports, which gave rise to complaints of two-tier justice. This was in respect of individuals from “ethnic, faith and cultural minority groups”. Of course, what we eventually had as a result of the dispute between the late chair of the Sentencing Council and the then Lord Chancellor was the Sentencing Guidelines (Pre-sentence Reports) Act 2025.

I do not propose to relitigate the issues around that legislation because it was primary legislation and there were comprehensive debates in both Houses about it, but it is important to remember that that is context for the debate and discussion on the efficacy and long-term future of the Sentencing Council. Noble Lords will know that that Act got Royal Assent on 20 June this year.

The background was that the Sentencing Council wilfully refused to amend its guidelines, despite being asked to do so by, effectively, this House and the other place, and the Executive and Parliament through the Lord Chancellor. As your Lordships will know, magistrates and the judiciary must follow such guidelines under Section 59 of the Sentencing Act 2020 and Section 120 of the Coroners and Justice Act 2009. The then Lord Chancellor correctly argued that the newly imposed guidelines represented differential treatment and two-tier justice.

The Sentencing Council is an independent non-departmental body sponsored by the Ministry of Justice, and it was created in 2009 and commenced its work in April 2010. As such, it is in the great scheme of things quite a new body—a successor respectively to the Sentencing Advisory Panel and the Sentencing Guidelines Council, both since abolished. The important point is that it is entirely the product of legislation, and that legislation could be repealed as easily as it was created. It was described by Professor Richard Bellamy in 2007 as an example of “political constitutionalism”, whereby the protection of minority rights undermines the protection of majority opinion, leading to its neglect.

The imbroglio over pre-sentence reports illustrates the fundamental issues at the heart of my amendment: judicial independence, and the role of Ministers and Parliament in sentencing policy. While the ability of the judiciary to set, and its role in setting, individual sentences—certainly prior to 1998—has been wide and permissive, Parliament has always had, and should have, a pre-eminent role, the upper limits when sentencing offenders being set through statute, such as Section 1 of the Sentencing Act 2020. That is something Parliament has always been jealous of in terms of its role in the sentencing framework.

Parliament should not involve itself in individual sentencing decisions—that is for trial judges, magistrates and appellate courts—but, quite rightly, it should and does, through Ministers, determine a broad sentencing policy framework. That is the delicate balance between democratic accountability and judicial independence, which the Sentencing Council upset and, frankly, transgressed. In supporting the new guidelines, the Sentencing Council violated the historic and fundamental principle at the heart of our judicial system: equality before the law. Commendably, and to her credit, the then Lord Chancellor—now the Home Secretary—made that point very strongly in the other place and throughout the passage of the legislation there.

The dispute last year pointed to another broader and wider phenomenon leading to a democratic deficit: the decisions of non-departmental public bodies and arm’s-length bodies lack legitimacy and proper accountability to elected Ministers and their electors and taxpayers. To quote the Times leader, which was cited in the other place by my honourable friend Sir Christopher Chope in March 2010,

“arm’s-length bodies … have often been favoured by ministers as a way of distancing themselves from contentious issues … Free of the need to answer to voters, ALBs can go rogue … in the face of public opposition”.

My honourable friend added:

“The Sentencing Council is not unique in being able to ignore the wishes of Ministers and Parliament”.—[Official Report, Commons, 14/3/25; col. 1452.]


I do not suppose that the Government will support this amendment, but they should certainly commit to ensuring that all further sentencing guidelines produced by the Sentencing Council be confirmed via order in Parliament prior to coming into effect. It should put beyond doubt that ethnicity, race, religion and membership of a “cultural minority” is no longer a factor in determining either a court sentence or pre-sentence reports.

Finally, the amendment focuses on not just the concerns of two-tier justice but democratic accountability, judicial activism, and the proper constitutional balance between the legislative and judicial branches. Fundamentally, we do not need the Sentencing Council. The Court of Appeal, prior to 1998, created judgments and authorities that established a body of case law refining some of the principles of sentencing, to give sentencing judges the ability to make those decisions. There was little or no evidence of sentencing inconsistency or lack of uniformity, of judicial independence being compromised, or of a lack of public support for or understanding of how sentencing works. For those reasons, I beg to move.

[Lord Burnett of Maldon (CB)]

My Lords, perhaps rather surprisingly, I find myself in agreement with the noble Lord, Lord Jackson, in seeking to remove Clause 18—but for polar opposite reasons. The noble Lord seeks to abolish the Sentencing Council; I wish to protect it from interference.

Abolition would be a retrograde step, which would undermine consistency in sentencing and destroy a structure that has evolved over 25 years. It has ensured that both sentences imposed and the impact of those sentences are properly informed by evidence, research and consultation, so I oppose the abolition of the Sentencing Council.

I shall explain why Clause 18, which requires the Sentencing Council to publish a business plan, over which the Lord Chancellor appears to be given control, should not stand part of the Bill. I shall also speak to Amendments 81 to 83 standing in my name, which seek to remove the veto that the Bill puts in the hands of the Lord Chancellor over the publication and introduction of sentencing guidelines.

First, I will spend a couple of minutes outlining the background to the Sentencing Council, to which the noble Lord, Lord Jackson, has made some reference already. The Sentencing Council was established by the Coroners and Justice Act 2009. The Act makes provision for 14 members, eight of whom are judicial, ranging from at least one Lord Justice to a magistrate, and six non-judicial, who must be drawn from those with experience of criminal cases in the courts, from policy, from those familiar with sentencing and the interests of victims, and from those who understand statistics and are involved in the academic study of sentencing and rehabilitation of offenders. The DPP, a senior police officer and a victims’ representative are members.

The Sentencing Council produces guidelines or amendments to guidelines in draft, having conducted extensive research. Those drafts are then consulted upon widely and, in particular, both the Justice Committee of the House of Commons and the Lord Chancellor are statutory consultees. Moreover, and importantly, the Lord Chancellor has a representative, who attends all meetings of the Sentencing Council and may speak at such meetings.

The Sentencing Council is, by statute, charged with monitoring the effect of guidelines in promoting consistency in sentencing and on public confidence. It must report on the effect of its guidelines on prison places and resources for probation. As the noble Lord, Lord Jackson, has noted, courts must follow guidelines unless it is in the interests of justice not to do so.

The Sentencing Council did not spring from nowhere; it was preceded by the Sentencing Guidelines Council, a creature of the Criminal Justice Act 2003. That produced guidelines to which the courts were required to have regard, but it was a much less sophisticated and less well-informed body than the Sentencing Council. Before that, the Sentencing Advisory Panel began work in 1999, and its function was to advise the Court of Appeal when it was considering producing a guideline case.

Before that, the Court of Appeal had no structured help from anywhere. The responsibility for producing guideline cases rested entirely with the Court of Appeal. In fact, they were relatively few and far between, so those who were sentencing offenders had to delve through a four-volume, loose-leaf work, which, from memory, was updated a couple of times a year. What followed was much better.

Clause 18 requires the Sentencing Council to submit a business plan to the Lord Chancellor for approval after the beginning of a financial year, setting out what guidelines it proposes to prepare and identifying its other activities. If the Lord Chancellor approves, the Sentencing Council would be required to publish the business case. At Second Reading I asked what this was all about—what its purpose was and what the consequences would be of a failure of the Lord Chancellor to approve. With respect to the Minister, there was no explanation forthcoming in his response at the end of the debate.

This provision, Clause 18, is, frankly, pointless. Failure to approve would not prevent the Sentencing Council doing what it planned to do. It looks like an attempt at a control mechanism of some sort—or at least a stick to wave over the Sentencing Council. The Sentencing Council is already under a statutory duty to publish an annual report on all its activities at the end of the financial year, with detailed statutory provisions of what must be contained within that report. With the greatest respect to the Government, if they are unable to come up with a coherent explanation, indeed any explanation, of what mischief this clause is designed to remedy and what its intended effect is, it really should not be in the Bill.

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Tabled by

[Lord Burnett of Maldon]

81: Clause 19, page 36, line 28, leave out “if such consent is given” and insert “unless both fail to consent”
Member's explanatory statement
This amendment and others in the name of Lord Burnett of Maldon to Clause 19 seek to (1) remove the proposed veto of either the Lord Chancellor of the Lord Chief Justice acting alone of the publication of new or amended guidelines, and (2) enable the Sentencing Council to publish guidelines unless both do not consent.

--- Later in debate ---

[Lord Burnett of Maldon (CB)]

I record, if I may, my thanks to the noble Lord, Lord Lemos, and to the Minister, in the broader conduct of this Bill, for offering to continue discussions. We have had useful discussions so far, even if they have not led very far. In those circumstances, I am content not to move the amendment.

Amendment 81 not moved.