Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Jackson of Peterborough Excerpts

2nd reading
Wednesday 7th May 2025 Lords Chamber

[Lord Jackson of Peterborough (Con)]

My Lords, it is a pleasure to have the opportunity to contribute to this important debate. I welcome the Minister to his place and look forward very much to the maiden speech of the noble Baroness, Lady Nichols of Selby. I broadly welcome this legislation while regretting its necessity and that we have reached such an unsatisfactory juncture. I am indebted to Policy Exchange for its excellent paper on this issue, Two-Tier Justice.

The impasse between the Lord Chancellor and the Sentencing Council was significant in its problematic challenge to parliamentary sovereignty, its undermining of the faith and trust that the public must have in the judicial system, and the concept of equal treatment under the law. It further undermined the long-established and quite proper constitutional convention of judicial independence and the separation of powers between the judiciary, legislature and the Executive.

The imbroglio arose from the consultation process on the sentencing guidelines, which was over two years in duration and culminated in January this year. The Sentencing Council’s wilful refusal, enunciated in its letter to the Lord Chancellor on 27 March, to amend its proposed guidelines demonstrated an obtuse disregard for democratic proprieties and quite legitimate criticisms of its actions in formalising two-tier sentencing and differential treatment by the courts based on membership of ethnic, faith and cultural minorities. This is at a time when the public are acutely aware and particularly mindful of fairness and appropriateness, or otherwise, in a number of high-profile criminal cases as reported in the media. This issue transcends party-political differences. It is about whether an elected Parliament and Government Ministers who are accountable to the electorate should be pre-eminent in setting policy in judicial and relevant related matters.

It is appropriate to make the point that pre-sentence reports are a vital tool for magistrates and judges, not least in securing a more comprehensive assessment of an offender and balancing the decision to impose a non-custodial sentence or a term of imprisonment. The previous 2017 imposition guidelines quite rightly made no reference to different cohorts that should receive a pre-sentence report. The new guidelines reference gender, ethnicity, pregnancy, transgender status, and addiction issues, as well as domestic abuse, modern slavery, grooming and other exploitation issues.

The automatic granting of a pre-sentence report to some groups but the availability of only discretionary powers to others was and is wrong. These proposals were divisive, racist and corrosive towards community cohesion. Essentially, if you are a white man who is not religious, you are, or were, under a material and substantive disadvantage in the proposed sentencing regime. The Lord Chancellor was right to highlight this in her letter to the chairman of the Sentencing Council, Lord Justice William Davis, on 6 March.

The fundamental question is: why were these new rules proposed, and on what evidential basis? The Sentencing Council’s 2023 Review of Trend Analysis of the Sentencing Council’s Imposition of Community and Custodial Sentences Guideline found that

“for those groups with larger volumes of offenders sentenced, there is predominantly no clear evidence of differential impacts of the Imposition guideline”.

The noble Baroness, Lady Falkner of Margravine, chair of the Equality and Human Rights Commission, was surely right to state:

“The correct constitutional position would be ... that a judge already has tools at their disposal to seek pre-sentencing reports and that they … do so based on an individual case on a case-by-case basis, rather than categorising certain groups”.


Indeed, we have existing primary legislation in place to allow judges to discharge their duties quite properly, with appropriate evidential discretion, via the Sentencing Act 2020.

The Sentencing Council consultation was flawed and inappropriate, dominated as it was by liberal, self-serving and partisan groups that disregarded the wider societal need for a criminal justice system which is fair, impartial, open and transparent. For the avoidance of doubt, it is not for a judge, however eminent, to unilaterally determine sentencing policy, especially when the Lord Chancellor objects. Parliament has never legislated for it, and it is clear that it is for the judiciary to interpret and apply the law and not to formulate policy on an ad hoc basis. It is for Parliament to set overarching sentencing policy and criminal justice policy while remaining aloof from sentencing of individual offenders by trial judges and magistrates—that also goes for the appellate courts.

So Lord Justice Davis’s rationale in interpreting the role of the Sentencing Council was erroneous. In his letter to the Secretary of State for Justice, Lord Justice Davis referred to the consultation process, stating:

“It was decided that to remove the list would have been contrary to the majority view expressed by consultees”.


That “majority view” among the consultees, that there should be a specified list of groups that automatically receive a pre-sentence report, is unsurprising. The consultation process received 150 responses, 40 of which came from charity or non-governmental organisations. They have every right, and perhaps a duty—organisations such as the Prison Reform Trust, Clinks, the Centre for Women’s Justice and the Howard League for Penal Reform are perfectly entitled—to put forward their views but the Sentencing Council should perhaps have had a more balanced view rather than looking just at the majority of opinion in this particularly niche and narrow consultation.

I think the role of the Government, Ministers and Parliament was misunderstood by the eminent Lord Justice Davis. He questioned whether it was in the power of the Minister to amend Section 1 of the Coroners and Justice Act 2009 in respect of proposing to the Sentencing Council that a sentencing guideline be prepared or revised by the council, and whether it was appropriate in this case. Although the legal advice that Lord Justice Davis intends to obtain has not, as I understand, been published, it seems on an ordinary reading of the legislation, given that the words of the statute are plain and unequivocal, to be a novel approach if the Lord Chancellor is not permitted to propose a revision of the guideline.

Lord Justice Davis also claims that the inclusion of specific cohorts in the imposition guideline is not

“a policy decision of any significance”,

but that is not the case. Even someone as distinguished as Lord Justice Davis must understand that he cannot unilaterally determine, in opposition to the Lord Chancellor, a policy that the Government are obliged to follow. He also says in his letter, rather oddly:

“All judges and magistrates are required to apply any relevant guideline unless the interests of justice require otherwise. In practice, the guidelines form the backbone of every sentencing decision made throughout England and Wales. There is general acceptance of the guidelines by the judiciary because they emanate from an independent body on which”—


this is an important bit—

“judicial members are in the majority. The Council preserves the critical constitutional position of the independent judiciary in relation to sentencing”.

He goes on to say:

“In criminal proceedings where the offender is the subject of prosecution by the state, the state should not determine the sentence imposed on an individual offender. If sentencing guidelines of whatever kind were to be dictated in any way by Ministers of the Crown, this principle would be breached”.


I believe that Lord Justice Davis is mistaken for the following reasons. First, the critical constitutional position of the independent judiciary relates to the sentencing of individual offenders, not the overarching policy. Secondly, Lord Justice Davis implies that the judiciary accept, and presumably follow, sentencing guidelines only

“because they emanate from an independent body on which judicial members are in the majority”,

and I believe that is wrong. Thirdly, the letter from the Lord Chancellor that Lord Justice Davis was replying to does not state or even suggest that Ministers should play any role in the sentences imposed on individual offenders. To suggest otherwise, as Lord Justice Davis does, is disingenuous, I suggest. Fourthly, and lastly, the sense that courts are not part of the state is not only wrong by any ordinary understanding of what the state consists of but is explicitly contradicted by the Courts and Tribunals Judiciary’s own website, which states:

“The justice system is one of the three branches of the state. The other two branches are the executive, or the government, and the legislature, which is the two Houses of Parliament”.


Presumably, when Lord Justice Davis refers to the state, he means the Executive.

It is right that the Government have taken swift action to legislate, but the Minister should also explain and look to the workings of his department, given that in the 12 months to January 2025, senior officials from the Ministry of Justice attended meetings of the Sentencing Council when these proposals were put forward, and yet they did not alert Ministers to the fact that the proposed guidelines would be completely unacceptable to both Conservative and Labour Government Ministers.

It is right that we open up and more closely examine the workings and membership of the Sentencing Council and that it is subject to proper scrutiny; for instance, with confirmation hearings in Parliament. We must make sure that something like this does not happen again. Guidelines for the future should be required to be confirmed by orders in Parliament before coming into effect. Finally, it is right that parliamentary sovereignty has been exerted in this case, while judicial independence remains protected. The Bill is a vital and timely intervention, and for that reason I am pleased on this occasion to support it.