Sentencing Bill

Lord Burnett of Maldon Excerpts

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.