Sentencing Bill

Lord Burnett of Maldon Excerpts

Report stage
Tuesday 6th January 2026 Lords Chamber

[Lord in Waiting/Government Whip (Lord Lemos) (Lab)]

My Lords, I beg to move Amendment 54 in the name of my noble friend the Minister, the noble Lord, Lord Timpson. I begin by thanking noble Lords for their careful and detailed scrutiny of Clauses 18 and 19. I and my noble friend the Minister are particularly grateful to the noble Lord, Lord Marks, and the noble and learned Lords, Lord Keen, Lord Thomas and Lord Burnett, for their further engagement in the meetings we have had since Committee.

In Committee, I promised your Lordships that the Government would reflect carefully on our current approach. Amendments 54 to 57, in the name of my noble friend the Minister, are the product of those considerations and reconsiderations. I must first note for the record that we shared the amendments in draft with the Lady Chief Justice and the Sentencing Council before tabling. I stress that, in keeping with convention, they were not invited to express a view on the merits of our proposed approach, nor did they do so.

The Government remain of the view that providing for approval of the Sentencing Council’s business plans and guidelines is the best way of maintaining public confidence in the council and its work. That said, we recognise that it would help to clarify what is expected from the Lord Chancellor and the Lady Chief Justice when considering any requests from the council. Our amendments seek to add important safeguards to both processes and to increase their transparency. We are particularly grateful to your Lordships’ Constitution Committee for the recommendation concerning Clause 18, which has informed and inspired the Government’s approach through these amendments.

I first turn to the concerns raised about the consequences for the council if the Lord Chancellor were to reject a request to approve a proposed business plan. As I explained in Committee, Clause 18 provides the Lord Chancellor with the opportunity to review a business plan before it is finalised. This ensures that the council has appropriately considered priorities from the Government and Parliament in developing the business plan. This should help to give the council a greater understanding of the Lord Chancellor’s priorities and help minimise the risk of disagreement later on during guideline development. If the Lord Chancellor decided not to approve a business plan, Amendment 55 requires them to notify the council and, as soon as practicable, lay a document before Parliament stating their reasons for that decision. Amendments 56 and 57 make similar provision in respect of sentencing guidelines.

Taken together, the Government’s amendments will ensure that any reasons for rejecting a business plan or guideline are publicly available and drawn to the attention of Parliament. This is an important commitment to accountability that will increase the transparency of both approval processes. Since this is a point that was raised in Committee, I confirm that nothing in this clause is intended to prevent the council from carrying out its statutory functions in the event that a business plan was to be questioned or rejected.

I will now address the concerns arising from Clause 19’s requirement that the Lord Chancellor and the Lady Chief Justice must each individually approve definitive sentencing guidelines before the council can publish them. We want to make it clear in the Bill that a very high bar must be met for any guidelines to be rejected.

Amendments 56 and 57 therefore provide that guidelines can be rejected only in instances necessary to maintain public confidence in the justice system. Our intention is that a rejection will occur in only very rare cases, when it is truly necessary to maintain public confidence in the justice system; it is absolutely not our intention for guidelines to be rejected arbitrarily. It is with that in mind that we have put these safeguards in place.

I hope noble Lords will recognise that this approach represents a significant constraint on any involvement in the guidelines and will help safeguard against guidelines being rejected without proper justification. By requiring approval from both the Lord Chancellor and the Lady Chief Justice, it is the Government’s intention for there to be close collaboration between the two on any approval requests from the council. In drafting this measure, we have also had regard to their existing joint responsibilities for the council, including, for example, the appointment of its members. We are keen to ensure parity between them in respect of the approval of guidelines.

Finally, we are also keen to provide assurance that the council’s work will not be subject to unnecessary delays, which, again, was a concern raised in Committee. Through Amendments 54, 56 and 57, we therefore propose that any approval requests from the council are to be considered by the Lord Chancellor and, in the case of the guidelines, the Lady Chief Justice, as soon as practicable.

I stress that we remain very grateful to the council for its continued work in bringing greater consistency, transparency and public understanding to the sentencing process. We look forward, from the Government’s perspective, to working closely with the council in the months ahead. I beg to move.

[Lord Burnett of Maldon (CB)]

My Lords, your Lordships may recollect that, in Committee, I supported an amendment which would have removed Clause 18 from the Bill altogether. While also suggesting that Clause 19 would be best removed, I laid an amendment to the effect that a guideline could be prevented from being issued only if both the Lady Chief Justice and the Lord Chancellor agreed that that should happen.

I am grateful to both the noble Lords, Lord Lemos and Lord Timpson, for the time and trouble they have taken in discussions, which have included me and my noble and learned friend Lord Thomas of Cwmgiedd. I am also particularly relieved that the noble Lord, Lord Lemos, explained in the all-Peers letter that went round—forgive me, I do not remember the precise date before Christmas—which drew attention to the fact that both the Sentencing Council and the Lady Chief Justice had been engaged in these amendments, that that should not be taken in any way as suggesting that either are happy with them or supported them.

Indeed, on 25 November, the Lady Chief Justice appeared before the Justice Committee of the House of Commons and explained that the clauses that we are concerned with do not sit easily with the independence of the Sentencing Council. She explained that there were no conceivable circumstances in which the Lady Chief Justice or Lord Chief Justice would seek to exercise the veto. She also made the important point that the mood of the Sentencing Council is “pretty bleak” because of the uncertainty hanging over its head. That was particularly important, as she explained, because the Sentencing Council is due to be very busy revising sentencing guidelines, which will be necessary as a result of the contents of this Bill, particularly because of the reduction in the use of suspended sentences. It will also be busy if the proposals that the Government have foreshadowed—to increase the sentencing powers of magistrates—come to be enacted, because, again, guidelines will have to be changed to reflect that. None the less, as I have said, the noble Lord, Lord Lemos, agreed in Committee to consider these matters further and I am particularly grateful for the care with which he and the noble Lord, Lord Timpson, have treated my concerns.

I regret that His Majesty’s Government were not able to accept the amendments that I laid in Committee, because these clauses remain unfortunate, to put it as mildly as I can. Clause 18, requiring a business plan to be approved by the Lord Chancellor, might be thought to serve no obvious purpose, save to empower the Lord Chancellor to exert some pressure on the Sentencing Council. But, as the noble Lord, Lord Lemos, just explained to the House, that pressure will have no statutory effect. That is because the Government have just now accepted that the Sentencing Council would still be obliged to carry out the positive statutory duties laid on it by statute, and to exercise the discretionary powers conferred on it by statute. But if the Lord Chancellor is to exert pressure—pressure which, in my respectful opinion, continues to be inconsistent with the independence of the Sentencing Council—he must at least do so as soon as practicable and explain himself, which are both positive steps.

Clause 19 as now proposed to be amended remains—this should not be sugar-coated—a potential executive veto. That veto too, if it is to come, must now come as soon as practicable, and the grounds on which it can be exercised have been identified. I recognise that that is an improvement, if perhaps only a slight one, on the original drafting.

As the noble Lord, Lord Lemos, explained, there is perhaps a hope—and, indeed, an expectation—within the Government that these powers will never be used in a way which brings conflict between the Government and the Sentencing Council, and between the Government and the Lady Chief Justice. But it is important, when conferring powers, to contemplate how they might be used by others who perhaps are not so benign in their attitudes as the current Government and Lord Chancellor.

It seems that the Government have laid the foundations for what could be the destruction of the Sentencing Council through executive interference. Were such interference to occur, I fear that the Sentencing Council would cease to function for the simple reason that all its members—all fiercely independent—would leave.

I concluded that there would be no purpose in relaying my amendments. I am grateful to both Ministers for the tentative steps that have been taken to ameliorate the impact of these clauses, and for that reason I support them.

[Lord Keen of Elie (Con)]

My Lords, it appears that the noble Lord, Lord Marks, has decided that he will make some submission.