Sentencing Bill

Lord Marks of Henley-on-Thames Excerpts

2nd reading
Wednesday 12th November 2025 Lords Chamber

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

My Lords, I start by expressing my sadness—along with that of so many others in the House—at the death of the noble Baroness, Lady Newlove, whose heartfelt commitment to and hard work for victims have been quite outstanding. I also thank the Minister for his opening, and his work on this Bill. It is a tribute to him that—with the enlightened and evidence-based backing of David Gauke and his team—he has had the courage to champion and introduce these reforms to sentencing, aimed at reducing reoffending.

The urgency of this Bill had indeed flowed from the prison-capacity crisis, which this Government inherited from the Conservative Government—whose responsibility, I am bound to say, was surprisingly not acknowledged by the noble Lord, Lord Sandhurst, in his criticisms of the Bill and his call for severity. The reality is that we imprison far too many people in this country, for far too long: many more than many other western European nations. There is no evidence of a reduction in reoffending rates as a result. As analysed by the noble and learned Lord, Lord Burnett, we have persisted in increasing sentence lengths by legislating both for longer overall sentences and for longer periods served, but also by a general sentence inflation, possibly in response to political, public and media pressure.

The noble Lords, Lord Bach and Lord Carter, and the noble Baroness, Lady Chakrabarti, captured this well in their critique of the regrettable toughness contest between political parties. The noble and learned Lord, Lord Thomas of Cwmgiedd, put it into historical context with his story of severe judges of the past now being seen as “softies”. The number of remand prisoners has increased, as the noble Lord, Lord Hastings, pointed out, and we have recently seen a record number of prisoners recalled for breach-of-release conditions: some 15% higher in the second quarter of this year than in the same quarter last year. The reality is that prison often does far more harm than good, and that is particularly true of short sentences. Where we can, we should be relying instead on effective and well-resourced community sentences, as the right reverend Prelate the Bishop of Gloucester argued in her principled speech, supported in large part by the noble Lord, Lord Hastings.

Many of our prisons have been bad at rehabilitation: underresourced, overcrowded and understaffed, with the toxic cocktail of failings rehearsed today and regularly in previous debates in this House, including too many prisoners in cells filled beyond capacity; prisoners locked in their cells, often for 22 to 23 hours per day, with very little purposeful activity. There is a shortage of vocational and educational training, and too few staff to manage the courses there are. An epidemic of drug abuse is fuelled by widespread drug trading often, sadly, involving corrupt staff. Prisoners, adults and young people, with serious mental health and addiction issues—as well as the literacy, educational and social difficulties discussed by the noble Baroness, Lady Longfield—find that those issues are all going unaddressed.

There is also appalling violence within our prisons. In June, the MoJ and Prison Service reported increases of 11% in assaults by prisoners on other prisoners and of 13% in assaults on staff over the last year alone, attributed in their report directly to overcrowding. There are persistently squalid conditions in many prisons with inadequate, cancelled or deferred maintenance programmes.

As my noble friend Lord Beith said, the criticisms we make do not apply to all prisons. Many of our prisons are of high quality, innovative and motivational, but a successful Prison Service would ensure that all institutions met those standards. In spite of all this, I accept the Minister’s overall characterisation of the commitment and performance of prison staff as incredible. But against a history and background of low morale, there are still too many who fall badly short of that characterisation, and their wrongdoing needs to be exposed and tackled.

The Bill recognises that reducing reoffending depends crucially on rehabilitation and on the Probation Service. It is worth remembering the massive cost of reoffending, estimated to account for more than half of the overall costs of crime in the UK—an annual cost of between £18 billion and more than £23 billion, even without the costs to the state of housing and social care for the families of offenders.

Central to the success of the Bill and the Government in their aims will be resourcing the Probation Service. The Government plan, as we have heard, to recruit 13,000 more probation officers by March next year and are allocating an additional £700 million to the Probation Service by 2028. However, we are seriously concerned that these figures do not add up, as my noble friend Lord Foster explained in detail—the noble Lord, Lord Bach, and others expressed the same doubts. Do the figures take into account three areas of extra costs arising from this Bill: more tagging; implementation of the presumption against immediate short sentences: and extra supervision of early releases on the earned progression model?

We welcome the presumption against short sentences. We have been calling for this for many years in the light of consistent evidence that such sentences increase rather than reduce reoffending. It is to be hoped that supervision of suspended sentences, together with conditions such as treatment conditions imposed by the courts, will lead to a targeted approach to rehabilitation and to addressing the individual difficulties of offenders in achieving rehabilitation within their communities, as described by the noble Baroness, Lady Porter. Suspension of sentences for three years rather than two should assist in this process. However, more suspended sentences should not, as the noble Baroness, Lady Prashar, argued, reduce the making of community orders where prison sentences are not warranted.

We also welcome the introduction of the earned progression model recommended by the Gauke review for standard determinate sentences. We recognise the perhaps surprisingly beneficial influence of the Texas model. This represents a logical, sensible and, above all, transparent approach to early release to replace the emergency and indiscriminate SDS40 arrangement. But, for the new system to work well and fairly, training and education in prison must be made more universally available. We would argue that there should be better rehabilitative programmes for prisoners on remand, as well as for sentenced prisoners, and we will introduce an amendment to that effect.

The introduction of a recorded finding of domestic abuse in the sentencing of a relevant offender is a reform for which my honourable friend Josh Babarinde campaigned in the House of Commons. This should enable victims and subsequent partners of domestic abusers to be better protected from past perpetrators. We also applaud the overdue recognition of the interests of victims as a factor in the purposes of sentencing.

On the question of the Sentencing Council, we fully agree with points widely made by my noble friend Lord Beith, the noble and learned Lord, Lord Burnett, the noble Baroness, Lady Chakrabarti, the noble Viscount, Lord Eccles, and others. We regard the Sentencing Council as performing a valuable and independent function in providing advice to sentencers. Nor do we see the Sentencing Council’s work as undermining the constitutional role of Parliament in sentencing policy, as the Bill and this debate so clearly demonstrate. We will seek to amend the proposal in Clause 19 to subject sentencing guidelines to a veto by the Lord Chief Justice—or Lady Chief Justice—and the Lord Chancellor, which is an unwarranted restriction on the independence of the Sentencing Council.

We have specific concerns about the recall provisions in Clause 29. Effectively, the Bill would introduce an automatic recall of 56 days for most prisoners recalled to prison. For less serious breaches, 56 days is a long time. As the noble Baroness, Lady Jones, pointed out, such recalls may cost offenders their accommodation or places on treatment programmes or the like. We will seek to amend this.

My noble friend Lord Beith mentioned our regret that the Bill does not commit to a resentencing of IPP prisoners. I agree with the tenor of speeches on IPPs from the noble Viscount, Lord Hailsham, the noble Lords, Lord Moylan, Lord Woodley and Lord Berkeley of Knighton, the noble Baroness, Lady Maclean, and others. The noble and learned Lord, Lord Thomas of Cwmgiedd, made the point of principle, and he added an important point on the cost of IPPs.

We also reject the notion of publicly shaming offenders undertaking unpaid work with names and photographs. It is vindictive and unhelpful—a point made by the noble Lord, Lord Hastings.

Overall, the Bill is overdue in putting rehabilitation and reform first, respecting the evidence on what works in reducing crime. Along with the right reverend Prelate the Bishop of Gloucester and others, we reject the Conservative Front Bench’s characterisation of these reforms as likely to increase crime and make the streets less safe. We stress, however, along with all those who have insisted in this debate, that the Bill’s success depends on providing the Probation Service with the support, personnel and resources that it needs. Ultimately, the potential savings to the public purse in reducing the cost of reoffending and the burgeoning costs of the Prison Service could, if realised, bring great net benefit to society, financial as well as social.

Sentencing Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Monday 1st December 2025 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I will speak very briefly. I thought the noble Lord, Lord Sandhurst, explained very well some of the reasons why this group of amendments is so important. I note, as somebody who is a fan of rehabilitation—although I quite like the rebranding that has just been suggested—that the truth of the matter is that what passes for rehabilitation, certainly in prison, is often shoddy, not available or not up to scratch. By the way, that is not a criticism of the people trying to deliver it. It is for all sorts of reasons.

I am very keen that we think hard about what kind of rehabilitation is being offered in the community. I just cannot see how, even with a pledge to invest £700 million more into probation services, the Government can deliver what is in the Bill. This is part of the problem I have with some of the suggestions around rehabilitating people via community sentences. I am worried that rehabilitation and community sentences will be discredited if this goes wrong. The amendments are trying very hard to ensure compliance and that sentences are completed, and that the victims and the whole of the community and society understand what they are trying to do. That is why these amendments are crucial.

I want to state very clearly that community sentences are criminal sentences. They are not supposed to be a soft option. They have to be taken as stringently and seriously as if you put somebody in prison. If somebody is put in prison and they escape—however that might occur—we think that they are trying to escape justice. My concern is that, if we do not have the resources, or do not keep our eyes on ensuring that community sentences happen properly, that is escaping justice. Therefore, it has to be taken very seriously.

I have some concerns about Amendment 52 in relation to mandatory “healthy relationships” courses. I have some cynicism that the way to solve the problem of violence against women and girls is through education. I have a certain dread of the kind of excuse being, “Well, you know, I committed that offence because I didn’t know that consent was needed. I wouldn’t have done the rape if I’d been sent on a good course”. I hesitate to say this, but some people are violent against women and girls because they despise women and girls: it is not a question of having sent them on a well-resourced course.

I have heard an awful lot of excuses in recent years from people who say, “I wouldn’t be a sex offender if only this had happened”. Well, you would not have been a sex offender if you had not committed the offence of sexual assault. So I do not want this to be an excuse for letting those largely male perpetrators off the hook.

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

My Lords, my noble friend Lady Hamwee has spoken to our amendment, which would require the Secretary of State to carry out an assessment of the potential benefits of mandatory healthy relationship rehabilitation programmes for offenders sentenced to offences against women and girls. We have heard the Minister talk many times about the Government’s target of halving violence against women and girls during the course of the Parliament. That is a target we completely support.

The area of relationship education is a difficult one, but we have evidence that education in healthy relationships helps to address unhealthy preconceptions and outdated—what some used to call “chauvinistic”—attitudes in young men. Sometimes those attitudes spill into offending, and my noble friend was entirely right to talk of harmful sexual behaviours. She also spoke about what young men in particular see and experience online, and how they take encouragement from that to do sometimes unspeakable things.

The question of rehabilitation for sentenced offenders is whether education would address this. I accept that making such programmes mandatory is not easy, but doing so would or might emphasise their importance. I hear the cynicism expressed by the noble Baroness, Lady Fox, about education for healthy relationships, but we have seen how relationship education in schools encourages healthier attitudes among pupils and greater understanding among young people of the concept of consent, as against the concepts of violence and force. I suggest that, for offenders who commit these offences, education would have the same beneficial effect, particularly if it is combined with a sentence for the offender, whether that is a custodial sentence or a community order. An assessment of that beneficial effect would be entirely beneficial.

In a sense, of course, this is a probing amendment, because we encourage the Government to make the position clear. We hope they will adopt the spirit of the amendment in any event, and that the Minister will commit the Government to undertaking such an assessment of the place of healthy relationship education, but we note that the amendment is also supported by the Opposition Front Bench.

I turn to the rest of the group. Amendments 53 to 55 and 57 would impose extra directions to the probation officers and impose burdens on them as regards the nature of the arrangements they make for rehabilitative activity and the flexibility they have in adjusting those activities.

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[Lord Sentamu (CB)]

My Lords, at the beginning of this second day in Committee, in which we have covered Amendments 51 and 52 and now this one, the noble Lord, Lord Foster, said that we can talk about doing all of this but it will all depend on whether there are resources to deliver real change.

In Yorkshire, I went to visit a pig farmer. He was very successful and the chair of governors of the local comprehensive school, where Ofsted was making a lot of demands, particularly about the testing of children. Everybody was into testing and examination, but the resources to deliver what was required were lacking. He said to me, “Come, and I will show you my pigs”. So we went to the farm and saw the pigs. He said, “Do you see them? Those are going to be sold in about six weeks’ time. What matters is not that every day I weigh the pigs to see whether they have arrived at the right weight. To fatten the pigs is not constantly to weigh them but to feed them”. That is what actually fattened the pigs, not the constant weighing. Transparency is important, but let us be very careful that we do not overburden the Probation Service by throwing at it a lot of things it needs to do and that we need to know whether it is doing them. What that did to the teachers, at the beginning of Ofsted, was to make them scapegoats to be blamed for a lack of proper resources and lack of constant training of teachers to be better teachers.

I hope that the Secretary of State will not be given so many burdens in things he has to produce before Parliament every year that our eye is taken off how we turn our Prison Service into a place where people really are rehabilitated, where those who want to learn are taught, and where reoffending begins to drop. We have to pay attention to that. I know that accountability and transparency are interesting, but we can become so obsessed that, in the end, people are given more and more burdens and take their eye off the job they are supposed to be doing. I urge a bit of caution, particularly about the Parole Board and what we mean by accountability and how we are going to get there.

I agree with the noble Baroness, Lady Fox, that certain things need not all hang out. There are certain things which require confidentiality, and, if we are not careful, we will begin to distrust the entire criminal justice system, because the public will feel unsafe and feel that more should be put in. We are all very keen on it, but how much volunteering time have we ourselves given to helping prisoners and the Prison Service, so that they begin to deliver better?

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

My Lords, I will address briefly Amendment 58A in the name of my noble friend Lady Hamwee and my name. The amendment addresses the need for a report on the availability of activities and treatments for probation requirements. It goes hand in hand with Amendment 139B, in my name, which proposes reporting the levels of reoffending by offenders who have completed both custodial and community sentences.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, I appreciate that anything to discourage populism is a popular call in this House for some people. I just ask the noble Lord what the danger is apart from encouraging populism. When I put my name to that amendment, even though I did not speak on it in the end, some of the controversies around sentencing, crime, law and order, prison, and so on have been a failure to provide information. The noble Lord mentioned the grooming gangs, but the more information there is, the better. What is there to be frightened of? One does not have to draw the conclusion that any negative things will come from having more information. As these kinds of details have been hidden for so long, having them made available for the British public so that they can make their own decisions is something we should trust the British public with. The noble Lord is keen that we trust probation officers. I am keen that we also trust the public.

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

My Lords, I too am keen that we should, generally speaking, trust the public. But Amendment 86 requires

“all offenders convicted and sentenced in the Crown Court or Magistrates’ courts”

to have their

“country of birth … nationality … ethnicity … immigration status, and … the offence(s) for which they were sentenced”

recorded, published and laid before Parliament. That could encourage the drawing of entirely the wrong conclusions by the British public.

[Lord Jackson of Peterborough (Con)]

I seem to recollect that the noble Lord’s party supported, for instance, the Lammy Review, which looked at sentencing and led, by a circuitous route, to the decision of the Sentencing Council to fall out somewhat spectacularly with the former Lord Chancellor. His party has also supported the use of quite detailed empirical data around stop and search, which is looked at through the prism of race and ethnicity. What is so different? Is there a particular kind of empirical data that he does not think that the public should be made aware of, or is he just saying that this a poor amendment for the sake of it? It seems to me that the rationale is that you collect as much data as possible, you have an evidence-led approach to the policy and then you can design the legislation in the appropriate way.

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

I entirely agree with the noble Lord and the noble Baroness about the collection of data. What I am concerned about is the mandatory publication of all data, which risks being misused.

The noble Lord is quite right to suggest that my party supported Lammy. Indeed, I spent some time in this Chamber in debates on the sentencing guidelines Bill reminding the House of the Lammy Review on the inequality of outcomes based on ethnicity. That is quite different from saying that every single offence needs to be reported on and published, which can lead to unfortunate reporting.

Turning to Amendment 93B in the name of the noble Baroness, Lady Neville-Rolfe, like the noble Viscount, Lord Hogg, not only did I agree with almost every word she said, but I agreed with it profoundly in the sense of the benefits of participation in education, training and purposeful activity. I just have some concern about the use of the word “mandatory”.

In principle, all those things are sensible and beneficial for all the reasons that the noble Baroness gave. However, as we in this House know, many prisoners are struggling with addiction and mental health issues and some with problems of aging and illness. For those prisoners, the prospect of education, training, work and purposeful activity may be nugatory. I worry about too much use of “mandatory” in these contexts without consideration of all the effects. What is important, as it was in the last group when we considered probation, is flexibility and a personal approach so that offenders are dealt with having regard to their personal needs. That is an additional point to the one made by the noble Viscount, Lord Hogg, who talked about the availability of particular training opportunities—which were important as well.

On Amendment 127, I say yes to transparency of the Parole Board. Generally, the proceedings of the Parole Board should be public, should be heard and should be considered. Reporting of them is a good thing. I agree with the noble Baroness, Lady Fox, that there may be material that needs to be private. In these hearings, some discretion must be applied to enable the Parole Board to receive and take note of material that should not necessarily be made public. The hearing should make that decision. However, in general, the principle of transparency is one with which I and my party agree.

[Lord Young of Acton (Con)]

My Lords, I support Amendment 86, in the names of my noble friend Lord Jackson and the noble Baroness, Lady Fox of Buckley, and will respond briefly to some of the points that the noble Lord, Lord Marks, just made in opposing that amendment.

It might be relevant here to consider the interim guidance published by the National Police Chiefs’ Council on 13 August, following consultation with the Home Office and the Crown Prosecution Service, to encourage police forces to disclose the ethnicity and nationality, although not the immigration status, of suspects charged in high-profile cases. That interim guidance is currently the subject of a consultation being carried out by the College of Policing, which is trying to decide whether to make the guidance permanent or to withdraw it. The Runnymede Trust and other charities have written an open letter to the Home Secretary and the chair of the National Police Chiefs’ Council making many of the same arguments that the noble Lord, Lord Marks, made, opposing the interim guidance that publishing the ethnicity and nationality of suspects in serious high-profile criminal cases is dangerous, that it can lead people to draw the wrong conclusions and that it can fuel the rise of populist parties and so forth.

However, the reason for the introduction of this interim guidance was the speculation and misinformation about the suspect in the Southport attacks in the summer of 2024. The object of advising the police to publish information about ethnicity and nationality of suspects in high-profile criminal cases is precisely to avoid people speculating in that way and drawing the wrong conclusion, giving them the information to fill the vacuum that would otherwise be filled by speculation. The same arguments can be made in favour of Amendment 86. If the courts—

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

I am sorry to interrupt the noble Lord, but I invite him to clarify whether his objection to what I was saying is restricted to high-profile criminal cases, to which he has referred, or does he support the amendment in so far as it covers every case in the Crown Court and every case in the magistrates’ courts?

[Lord Young of Acton (Con)]

I support the amendment and do not think it is excessive to require the publication of this data in every case. Would the noble Lord approve Amendment 86 if it was amended, whereby it was just information about convictions in high profile cases that the amendment was asking to be published? Is the noble Lord’s objection just to the extent of the information required to be published, or does he object to any information being published?

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

The noble Lord sits down expecting a reply from me, and he will get one. It is that there is and ought to be a discretion about this sort of publication. To have a mandatory requirement for the recording of all information in every case—and it may be that it also goes to some high-profile cases—is to tie the hands of what is published in an unreasonable way. It may be that, in a lot of cases, publication is plainly in the public interest and should happen. I accept and agree that there should be the fullest possible recording, and then publication is a matter for the department.

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[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.

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

I think the noble Lord did misunderstand me. I did not oppose publication in any broad way; I simply said it was a matter of discretion as to what should be published and what should be kept private. The issue of universal publication is the danger that I expressed. It is a matter of discretion, relevance and importance, and those are decisions to be taken by those who collect the information.

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

Amendment 60 in the name of my noble friend Lady Hamwee would make it clear that a public event attendance prohibition requirement would not be available if its enforcement was not reasonably practicable. I share the doubts of my noble friend on practicability. Indeed, the widest orders in this category—that is, prohibiting attendance at any public event rather than particular events—may generally be too wide in any case, because it is going to be very difficult to define a “public event”.

Moving to a more general point, one of the difficulties with the restrictions in this group is the difficulty not just with practicability but with enforcement, spoken to in the last group by the noble Baroness, Lady Fox. The noble Viscount, Lord Hailsham, foresaw difficulties in determining practicability, which he thought might be fatal to these conditions. I can see his point that there are difficulties. The question for the Committee in considering whether these conditions ought to be permitted is to see how far they would in practice be imposed if not practicable, and then to consider the question of practicability.

I suggest that the answer to the difficulties is a combination of the justification points relating to community orders, if I can put it that way, and the enforcement possibilities offered by new technology and intelligence. As far as intelligence is concerned, I take the point made by the noble Lord, Lord Jackson, that it is pretty easy to find out where the pubs are. But there are other difficulties of intelligence which new technology and intelligence-gathering techniques might be needed to address.

However, when I talk about justification, it is right that we should remind ourselves that the conditions are intended to augment community orders and suspended sentences, and those sentences are intended to be, in part at least, punishment, no differently from a curfew order or a residence requirement. They are in part, therefore, punitive. However, the alternative may be custody, which is a far more serious punishment, and one that with the best will in the world offers a substantially reduced chance of the offender having the opportunity to undertake any rehabilitative activity at all.

The other point is new technology and intelligence techniques. Noble Lords have mentioned electronic monitoring, as well as alcohol monitoring and other devices, but electronic monitoring using tagging is a considerable part of the answer. Although I have some sympathy with the noble Baroness, Lady Fox, on the civil liberties implications of these conditions, monitoring by tagging is no different from monitoring by curfew or by a residence requirement, which we have had for a very great deal of time, but the new technology enables a more flexible and wider approach to conditions. However, I remind the noble Baroness, Lady Fox, that civil liberties are restricted at their very worst by imposing sentences of immediate imprisonment where people are in custody.

Amendment 106 in my name would allow exemptions or variations by probation officers to allow a person to attend employment, education or rehabilitation programmes, but those exemptions or variations would be exceptions to the imposition of the restriction zone condition. The amendment also requires a report on the operation of restriction zone conditions.

The purpose of this amendment in each of its sub-clauses is to enable both the courts when imposing conditions and probation professionals to weigh in the balance, on the one hand, the extra security and the protection of victims or potential victims which may be offered by the imposition of a restriction zone condition, against on the other the desirability of encouraging offenders to benefit from opportunities of employment, education or rehabilitative activity. It is a classic balancing exercise of a type that is undertaken every day by members of the public and professionals in daily life when they consider questions of risk against opportunity, and that is really what we are talking about here. The point is that our amendment does not come down exclusively on one side or the other. The idea of it is to enable the imposition of these restriction zone conditions, not to conflict with the provision of educational or other opportunities. So, the condition could still be made, but subject to those exemptions or restrictions, which will permit the desirable activity.

The noble Lord, Lord Jackson, supporting my noble friend Lady Hamwee in her amendment, said that it was unfair to oblige venues and others to police these conditions, and of course I see that. But these conditions are not perfect, they will not be perfectly enforceable, and they will not be completely practicable in the sense that they will always prevent the restricted activity. However, for the most part, in practice, offenders are likely to observe these conditions simply because they are there, and for fear of being caught and punished for their breach.

Questions of affordability were raised, and of course more resources are going to be needed to police and enforce these conditions, but those costs have to be measured against the costs of custody.

The noble Baroness, Lady Prashar, raised an interesting point with her amendment when she suggested that the Parole Board should have oversight of restriction zones. For my part, I am not quite sure how that will work—it seems an onerous obligation on the Parole Board—but I take her point that there should be some oversight of restriction zones. In a general sense, that could be undertaken by the Sentencing Council in considering sentencing guidelines to judges on how they are to be imposed, and by training of probation officers in how they are to be implemented.

On electronic monitoring, of which the noble Baroness, Lady Fox, spoke, if it is proportionate and appropriate and is subject to restrictions that are decided upon to ensure that it is, then, broadly speaking, I agree with her points.

[Lord Keen of Elie (Con)]

My Lords, I will begin by speaking to the probing amendments tabled by my noble friend Lord Jackson of Peterborough. In doing so, I am sure I will reflect the concerns already expressed in other parts of the Committee about these provisions in the Bill.

It has already been made clear that we on these Benches do not in principle oppose the idea of giving courts new tools to protect the public. These are tools that might, if properly designed and enforced, help to manage some offenders in the community rather than defaulting to custody, and we support that aim. But Clauses 14 and 15 do little more than say that courts now have these powers. The Government have provided little, if any, detail as to how these powers will be enforced. A ban that cannot be enforced is a false promise and, indeed, as a consequence, a danger to public confidence.

The Government want this House to support the expansion of suspended sentences and community-based orders. Yet to support them in this effort, they are asking us to sign off on a national regime of pub, club, concert and public event bans, without explaining how these will function on the ground. There is no credible enforcement plan. Are we seriously proposing that every pub, bar, off-licence and concert venue across the country becomes a mini probation checkpoint? Do we expect landlords, doormen, waiters and bar staff to act as de facto probation officers, verifying the identity of every customer against confidential court orders? The result would be unacceptable. If such pub bans become unenforceable and are reduced to a tick-box exercise in sentencing documents while nothing on the ground actually changes, the sanction will become meaningless. That would not be an improvement in justice.

The burden that such a regime would place on the hospitality and nightlife sector would be considerable. Pubs and nightlife venues are already under severe financial and structural pressure, as we know from various reports from the Night Time Industries Association. As a consequence of the national insurance increases, further tax pressures and red tape imposed on these venues by the Government, some 209 pubs—an average of eight a week—have closed permanently and many more continue to struggle. It is simply unrealistic, never mind unfair, to add to this burden by requiring them to police court-imposed bans on individuals under threat of legal liability.

The Government may argue that the burden of enforcement will not lie on public events or drinking establishments, but, in that case, they must lay out in detail how they plan on enforcing these orders with a Probation Service that, as everyone would accept, is already under severe strain. Simply saying that they have additional funding is not enough. We require specifics if we are to trust that the Government can cope with the pressures of managing offenders in the community. If the Government cannot explain clearly how these bans will be notified, enforced or policed, how can this House responsibly vote for this provision? We on these Benches must ask: on what basis are we expected to vote to expand suspended sentences for a broad group of offenders, if we cannot be satisfied that community supervision will actually work and without the most basic detail on banning access to pubs or events?

The amendments offer a simple test. They would require the Government, before we hand out sweeping powers to courts, to set out a clear, practical enforcement regime. They demand a reasonable amount of certainty. Who will be notified: pubs, events, promoters, the police? What will happen when an offender is banned from public events or drinking establishments? How will these bans be communicated? How will they be recorded? How will they be checked? What enforcement mechanisms will be used if an offender breaches the ban? Who will bear the cost and responsibility of monitoring: the state, the Probation Service or venues? If the Government cannot provide that clarity, these provisions risk being no more than symbolic restrictions. They will simply result in theatrical sentencing with no real-world effect, and that, in turn, will undermine public confidence and public safety.

The choice is not between doing nothing and embracing these sweeping new powers; it is between legislation grounded in operational reality and legislation built on aspiration and illusion. These amendments do not oppose the idea of community-based orders; they demand that, if we are to entrust courts and probation with greater powers, those powers must be backed by a robust, enforceable system and not simply by faith. We owe that to the victims of crime, to the public, and to the men and women who work in establishments such as pubs and other public venues.

The noble Baroness, Lady Hamwee, moved her Amendment 60, which is intended to probe the enforceability of public event attendance prohibition requirements, which points to another important question that is central to the debate on these orders. The noble Lord, Lord Marks, spoke to his Amendment 106, which would allow for exemptions to restriction zone conditions, such as to allow a person to attend employment, education or rehabilitation programmes. I would have thought that these would be included in the specified restriction zone, but I look forward to the Government’s response on these points.

On the part of the amendment that requires an annual report on the orders’ use and effectiveness, we on these Benches support the underlying sentiment. Without the requisite evidence, we cannot be sure that the provisions in the Bill are working or will work. We therefore fully support the amendments in the name of my noble friend Lord Jackson. We look forward to hearing the Minister’s response to these important probing amendments.

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

My Lords, before the Minister responds, I will make two apologies. The first is to the noble Viscount, Lord Hailsham; my noble friend Lady Hamwee tells me that I referred to him twice as the “noble Viscount, Lord Hogg”. The second is to my noble friend Lord Foster, because I referred to the points that he made on electronic monitoring as having been made by the noble Baroness, Lady Fox. I apologise to them both.

[Baroness Fox of Buckley (Non-Afl)]

I will join the trend. I apologise to the noble Lord, Lord Sandhurst, for calling him “Lord Sanderson” in my enthusiasm to agree with him. Misnaming is almost as bad as misgendering, but I hope he will let me off. I was glad to take credit for the very important points made by the noble Lord, Lord Foster, about electronic tagging, because I agree with him.

I want to query the Minister now, rather than interrupting him later, about this group. There is something I do not understand. The group is focused largely on enforceability, yet in the previous group, the Minister claimed that these kinds of prohibitions were part of the punishment. He is right to suggest that these are punishments for those people—they are not in prison, but they are still being punished. But I do not find it easy to understand how these orders punish the individuals. Are they related to the crimes they committed? The example that the Minister gave earlier was that, as part of the punishment, someone will be prevented from going to a particular football match. I understand that, if someone supports Liverpool, it might be a punishment to watch them at the moment, never mind anything else.

How do the punishments get decided? There was the example that the noble Lord, Lord Foster, gave of the potential downside of saying that we will have a curfew and someone cannot attend their Gamblers Anonymous meeting. Also, if we are going to say that, as part of the punishment, someone cannot go to public gatherings, who decides which public gatherings are included? Some public gatherings are obviously morally good for people. Do we not want them to go to a political public gathering?

Can the Minister just clarify how it is decided which person in the community gets one of these orders and who makes a decision about who should be banned from a pub, football match, public gathering, political gathering or what have you?

Sentencing Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Monday 1st December 2025 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I have added my name to the amendment in the name of my noble and learned friend Lord Burnett of Maldon and the proposition in the name of the noble Lord, Lord Jackson of Peterborough, that Clause 18 should not stand part of the Bill. I have done so because it is important that we see this as a constitutional issue.

It is necessary to go back to the achievement of the last Labour Government. Some still mourn the loss of the position of Lord Chancellor, and tonight is not a time to go into why there had to be change. It is important to go back to those times to see what the abolition of the office of Lord Chancellor entailed. In many respects, he—and it was a he, save in the case of Matilda the Queen—acted as the linchpin, a person who could bring together the judiciary, Parliament and the Executive. When that linchpin was taken away, it became necessary to look for a mechanism through which the three separate branches of the state, each with their own independent position, could act and work together reflecting what is inevitable in a state—their interdependence.

Out of the change that was made—which was somewhat hurried, if I recall correctly—there was born a series of mechanisms to balance the constitution. There was the concordat agreed, which dealt with problems such as the appointment of leadership judges, which was a joint and shared responsibility of the Lord Chancellor and the Lord Chief Justice. There was then the need to look again at the way the rule committees worked, because sometimes one forgets how vitally important it is that the rules work well, that Parliament has its input and that the judiciary and all those other interested parties have their input in producing rules of procedure that work. When you talk to people in other countries, you see what a huge advantage we have here. I mention these examples—and there are many other instances, which I will not weary your Lordships with at this hour of the night—that reflect what is, I feel, the spirit that was created by the previous Labour Government, which endured very well under the Conservative Government, but which is now being undermined by the particular changes being made here.

My noble and learned friend Lord Burnett and the noble Lord, Lord Jackson, have both explained how the Sentencing Council evolved, and I do not think it is necessary to go over that ground again. But it is necessary to say that the Sentencing Council was born in the spirit of needing to create the interdependent relationships between the three branches of government. The great thing about all the reforms that were made is that, by and large, they have worked. Of course, when you have three different bodies, there are bound to be hiccups, and there was a hiccup earlier this year. But one has to look and see what the achievement was and how it worked.

What the Sentencing Council did was to bring together the respective responsibilities. Parliament’s responsibility is setting the framework. Generally speaking, until we had the clauses that we discussed examples of earlier in Committee and which are of a completely unnecessary complexity, Parliament’s function normally was to set the broad brush of sentencing policy; unfortunately, it has gone away from that, much to everyone’s cost. The judiciary then pass the sentences, though they previously had, as the noble Lord, Lord Jackson, and my noble and learned friend Lord Burnett explained, issued guideline cases to achieve consistency. Then the Executive are involved because after all, they have to find the money to deal with the punishments, and they have to administer the system. So, it is necessary to have the input of all three if the sentencing framework is to be set by Parliament, the judges are to do their job and the prisons and penal system are to work as intended. In balancing those three interests, it was essential to have an independent council that could bring everyone together.

The great success of this is that it has worked. Now, why did it work? Why was it successful? Well, I recall, it must have been in 2009 that the then Lord Chancellor, Mr Straw, and the then Lord Chief Justice, Lord Judge, working no doubt at about this hour of the night, if I recall it correctly, in their shirt sleeves, were looking at the detailed clauses and agreeing the composition of the council—it went to that level of detail at the highest level. The compromise was made, and a successful institution was created; and successful it has been because it had virtually completed producing the guidelines by the time of the row that occurred earlier this year.

I would simply say that the idea of a constitutional settlement, carefully worked out in the spirit that was born in our renewed constitution in 2005 and in the actions taken in 2009, is the way in which we should do things if they are to result in success. Now, there was the hiccup earlier this year—I do think it is probably right to call it a hiccup, as it really was not much more than that if one looks at it and stands back. It is a pity it could not have been resolved there and then, but it cannot be any excuse for altering the delicate mechanism created by the previous Labour Government. There is no justification for it whatsoever.

It seems to me that there are two points. First, Clause 18 ought not to stand part of the Bill: it seems an absurd thing to say that the plan of an independent body has to be decided by one of the three parties that is involved. It would be a good idea, maybe, if all three were involved in looking at the plan, but why one of them? It makes no sense, and it tears up the carefully agreed compromise that was struck. Secondly, it would be much better if Clause 19 did not stand part of the Bill, because that is another aspect of this Government’s desire to tear up, for wholly unnecessary reasons, a proper compromise made by their predecessors in 2009.

However, I agree with my noble and learned friend Lord Burnett that we should go along in the spirit of compromise, but I regard that as a compromise, and it is one that I would hope the Government would accede to, and not pursue the destruction—because that is what it is—of the careful balance worked out by the late Lord Judge and by Mr Straw.

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

My Lords, I oppose Clause 18 and Clause 19, and my preference is, quite definitely, for both clauses to be removed from the Bill. I have not signed the opposition by the noble Lord, Lord Jackson, to Clause 18 standing part, because his reasoning is rather different from mine, but Clause 18 is, frankly, very strange. It is certainly pointless, just as the noble and learned Lord, Lord Burnett of Maldon, said, but it is also, with the greatest of respect to the Government and the drafters of the clause, legislatively illiterate.

I can see no reason in practice for the Sentencing Council to submit a business plan to the Lord Chancellor for approval as soon as possible after the beginning of the year—one wonders when that is supposed to be. But if there is to be a business plan, it is a strange imposition of a new duty on the Sentencing Council that it must declare in advance what it proposes to study, research and support during the course of the coming year without knowing what is coming down the track during the course of the coming year.

In any event, a business plan is pre-eminently a document for the body that is responsible for it and producing it itself to decide in its own discretion and to determine what it puts into it. Clause 18 demonstrates a serious lack of trust in the Sentencing Council to manage its business. Why should the Sentencing Council submit any business plan for approval by the Lord Chancellor, a member of the Government—with, certainly, an input into the Sentencing Council, but not a decisive or determining input?

Is it suggested that the Sentencing Council would not be entitled to consider other matters in the year, unforeseen at the beginning of the year, if they were not in the business plan? If that is not so suggested, what is the point of the business plan? It does not delineate the responsibilities that the Sentencing Council will carry out.

The clause represents an attack on the independence of the Sentencing Council. We have heard from both noble and learned Lords that it was set up by statute to be an independent body tasked with advising sentencing judges on the principles they should apply to sentencing—within the terms of the law as provided by Parliament in statute and the common law, of course, but independent in its advice to judges.

Sentencing Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Wednesday 3rd December 2025 Lords Chamber

The Minister has offered a separate session to demonstrate his confidence in delivery capacity once the Bill is enacted, and that of course is very welcome and we look forward to it. But if he is so confident, none of the amendments in this group should be of any concern to him, so I look forward to hearing what he has to say. However, in particular, I hope he will support my Amendment 88, since it merely requires the Government to stick to their promise to deliver a statutory annual capacity report. I beg to move.

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

My Lords—

[Baroness Jones of Moulsecoomb (GP)]

Can the noble Lord, Lord Woodley, get up?

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[Baroness Hamwee (LD)]

My Lords, I will speak to Amendment 93E. In this case, the capacity is that of prison officers. The amendment calls for an annual report, but, as we discussed on the first day in Committee, the wording is really only a mechanism to introduce an issue. In this case, this is a probing amendment seeking assurances about activities and the need for prison officers to support those activities.

It is common sense that activities in prison are important. Nothing in what I say is intended to downplay the work of probation officers; this is just a different focus. Activities that are “purposeful”—a word that we used a lot on the previous day—including, in particular, educational and vocational activities, are too often either not available or not sufficiently available. They would not all be delivered by prison officers, but they need their buy-in and support. I have raised this because I have become aware, as others will have been for longer than I have, of the shortage of prison officers and the strain on them. To be attractive, the work needs to be more rewarding and to have its professional status recognised.

Purposeful activity—by which I mean meaningful and rehabilitative, not performative—should be central to time in prison to reduce reoffending and for transferable skills to be taught. But we know that activities start from a low base—they are inadequate in number and, I guess, in type—and are cancelled because of chronic staffing shortages. As a result, basic numeracy and literacy are not available.

As the Justice and Home Affairs Committee report said:

“The Ministry of Justice should prioritise purposeful activity as a core function of the prison regime, ensuring that work, education, and rehabilitative programmes are protected from disruptions caused by staffing shortages. This will require a strategic focus on maintaining consistent activity delivery, even in the face of staffing challenges”.


That was one of the recommendations accepted in full by the MoJ. This amendment therefore has two focuses: the activities themselves and the position of prison officers.

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

My Lords, I will speak first to my Amendment 93, which would remove the cap on sitting days in the Crown Court for sentencing hearings. This was an amendment moved by my honourable friend Monica Harding in the House of Commons. I will then move on more generally to sitting days and the other amendments in the group.

There has been a somewhat surreal argument in this House and elsewhere about the number of sitting days, given the appalling background of delays in Crown Court hearings, particularly with trials delayed sometimes, as we have heard, until 2029, which has amounted to a denial of justice as well as a delay in justice. Our wish is to see everything possible done to reduce court delays.

--- Later in debate ---

[Lord Sentamu (CB)]

My Lords, in this country we really have our hearts broken when, in places in the world where there are dictatorships, people are incarcerated year in, year out with their cases not even heard. We find that quite appalling.

When I was sent to administer justice in the northern part of Uganda, where a lot of people had been locked up because President Amin did not want them around, I arrived there and they said, “No, you can’t hear those cases because the president has told us we shouldn’t do this”. I had been trained in the English way of looking at justice. I could not but hear those cases. My first job was to hear those very hard cases, and I found out that there was no evidence as to why they should be in prison.

I remember that I took nine of them into my chambers and told them, “I’m going to keep you locked up, but I’ll tell you on which day you’re going, and I’ll announce in court, when you have already left the country, that you have been discharged from this particular thing on these grounds”. That went on for four months. Then I had my time, when there were no soldiers in the court observing what I was doing. I knew that if I had released them before then, they would have been killed. Part of my falling out with Amin was to do with some of those cases.

It is not easy to deliver justice. The noble Lord, Lord Blunkett, was clear that some of these prisoners—I have met quite a few in Birmingham and in the province of York when I have visited prisons—and their stories leave you saying, “Is this the mother of democracy? Is this the mother of the way courts work? Is this how we treat people?” Those who committed crimes when they were young, particularly, have looked at possibilities, and then what has happened? Hope has been dashed.

I plead with the Minister that, instead of asking noble Lords to withdraw their amendments—that may be the language used, in order that this does not necessarily become a strategy—there be a dialogue with people with good ideas, which the Minister is very good at, so that we solve this once and for all.

This has left me sometimes very angry, so I can understand why the noble and learned Lord, Lord Thomas, said that if we do not do anything about it, we already have blood on our hands. A just society is shown by how it deals with the vulnerable, the weak, the helpless. They have been put there for years at Her Majesty’s pleasure, and now at the King’s pleasure. Something has to be done. My view is that the Minister should gather together a group of people with good ideas and have a real conversation, rather than going through the motions of “I ask the noble Lord to withdraw his amendment”, because that is postponing justice, and that is not on.

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

My Lords, the speeches in this debate have been comprehensive and committed, so I have little to add to them. All noble Lords who have spoken have done so passionately and persuasively about ending this scandal. I use the word “scandal”—it has been rightly called a disgrace, a stain on our system, and many other things. The passion for justice of the noble and learned Lord, Lord Thomas of Cwmgiedd, shone through every sentence of his speech and has to oblige the Government to end this appalling injustice. We have been guilty, in a country dedicated, nominally at least, to ideals of justice, of the grossest of injustices in this case. It must end, and it must end now.

We have a chance to end it now, completely and for ever. We thought we had abolished IPPs in the LASPO Act when we stopped any new IPP sentences being passed. My noble friend Lord McNally, then Minister of State, and the noble Lord, Lord Clarke, Secretary of State at the time, believed that the power to reverse the burden of proof in that Act would be exercised, so that we would never have this long tail of IPP prisoners who have now served way beyond their tariffs.

The noble and learned Lord, Lord Thomas of Cwmgiedd, explained how unjust it was that IPP prisoners were treated unlike any other offenders. For those prisoners, we have abandoned any principle that the punishment should fit the crime, in favour of a system of preventive detention with a heavy burden placed throughout on prisoners to prove their fitness for release after their proper punishment—often very short punishment—has been completed. The principle of punishment fitting the crime has been ignored, as has been illuminated by nearly all the speeches today. That illumination has extended to the complete ineffectiveness of the action plan in the case of many IPP prisoners, however well-intentioned it was at the time. Those prisoners could end up, as the noble Lord, Lord Moylan, pointed out, imprisoned for the rest of their lives if they fail to qualify for release under the action plan.

The sensible way to end this now is to accept one or more of the amendments before the Committee in order to ensure the early release of all remaining IPP prisoners and to end their risk of recall within a reasonable time span. I do not mind which amendment is adopted. I note that after his detailed and learned analysis, the noble and learned Lord, Lord Hope, was broadly content to endorse any of the solutions proposed by the noble Lords, Lord Woodley and Lord Moylan, the noble Baronesses, Lady Jones and Lady Fox, or the noble and learned Lord, Lord Thomas, and myself. I too am content with any of those solutions. The important thing is to persuade the Government now to accept one of them and finally to put an end to this injustice.

[Lord Keen of Elie (Con)]

My Lords, I am grateful to all noble Lords who have spoken in what is a profoundly serious and necessary debate, and to those who have tabled the amendments before us: the noble Lords, Lord Woodley and Lord Blunkett, the noble and learned Lord, Lord Thomas of Cwmgiedd, and my noble friend Lord Moylan. These amendments reflect a shared recognition across parties and across the Committee that the legacy of the IPP regime remains one of the most challenging unresolved issues within our criminal justice system and, as the noble Lord, Lord Marks, observed, a “stain” on our justice system.

Under our system of criminal justice, we do not detain and imprison people because we perceive that they are probably or even certainly going to commit a crime at some indeterminate and uncertain point in the future. But that is essentially the basis upon which we detain IPP prisoners in custody after they have served the prison term of their original offence. It is, of course, worrying that many IPP prisoners may present a serious risk to the public if released. However, under the logic that flows through much of this very Bill, the Government must be prepared to advocate for society to accommodate such a risk by community supervision rather than endless detention.

As the noble Lord, Lord Woodley, observed, the Justice Committee’s 2022 report described the IPP system as “irredeemably flawed”, and he seeks to give effect to its recommendation. Whether or not Members support that specific mechanism, it is beyond dispute that thousands of IPP prisoners remain trapped in a system never intended to endure, with outcomes that the state itself acknowledges are simply wrong.

My noble friend Lord Moylan’s amendment raises another vital point: the ability for prisoners on extended licence to seek annual review after the qualifying period. Whatever one’s view of automatic termination on mandatory timelines, there is clear force in the principle that people must not be left without a meaningful hope or a clear route to progress.

The noble Lord, Lord Blunkett, spoke to his Amendments 116 and 117 on recall and automatic release. Again, many noble Lords will be uneasy that individuals can be recalled indefinitely for minor, technical breaches, long after tariff expiry. This, again, points to the need for clarity, confidence and, indeed, proportionality in the present system. It cannot be simply risk aversion that dictates outcomes.

The amendments in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, supported by others, propose a future release mechanism whereby the Parole Board can set a specified release date, subject to compliance with directions. This recognises the reality described by countless practitioners that progression can become possible only if there is a clear destination and a structure to reach it. Amendment 130 then introduces a safeguard enabling the Secretary of State, if necessary, to seek variation to protect the public.

No one in this debate has suggested that risk can be ignored. Equally, nobody advocates arbitrary release of dangerous offenders. But every proposal brought to the Committee today has an element of public protection embedded in it. Where Members may differ is only on the most responsible and principled route to resolve a system that all agree has patently failed. The point is to choose not the easiest path but the right one. The public are entitled to a system that protects them, but then IPP prisoners and their families are entitled to justice and to fairness. The rule of law should produce finality—indeed, it must produce finality.

I thank noble Lords again for the seriousness with which they have approached this debate. I look forward to continued constructive engagement as the Bill proceeds—and to the necessary outcome that justice demands, not just for IPP prisoners but for our collective conscience.

--- Later in debate ---

Moved by

[Lord Marks of Henley-on-Thames]

90: After Clause 19, insert the following new Clause—
“Independent advisory panel on sentencing and reducing reoffending(1) There is to be an independent advisory panel on sentencing and reducing reoffending. (2) The purpose of the panel is to facilitate greater scrutiny of the impacts of policy and legislation on prison and probation resources, helping to encourage a more sustainable criminal justice system in the long term.(3) The panel is to act as an authority on what works to reducing rates of reoffending, including but not limited to—(a) championing and promoting the most authoritative evidence on what works to reduce and prevent reoffending;(b) producing advice on the most effective methods to reduce reoffending drawing upon evidence from national data, international contexts and expertise within the sector;(c) championing best practice examples of technological interventions to reduce reoffending, with consideration of the risks or ethical implications of using such technology.(4) The panel must, as soon as practicable after the end of each financial year, report to the Lord Chancellor on its work during the year.(5) The report specified in subsection (4) must include but is not limited to—(a) a longer-term assessment of the cumulative impact of government policy and legislation on sentencing and prison and probation capacity;(b) an assessment of the effectiveness of the government’s overall reducing reoffending strategy.(6) The Lord Chancellor must lay a copy of the report before Parliament and place copies in the Library of both Houses.(7) The panel must publish the report once a copy has been so laid.(8) The panel is to consist of at least 8 members appointed by the Lord Chancellor.(9) The Lord Chancellor must appoint a chair of the panel.(10) In exercising his or her responsibilities under subsection (9), the Lord Chancellor must seek approval for his or her choice of chair from the Justice Committee in the House of Commons.(11) A person is eligible to be a member of the advisory panel if the person appears to the Lord Chancellor to have experience in one or more of the following areas—(a) judiciary;(b) criminal defence or prosecution;(c) sentencing policy and the administration of justice;(d) prisons and probation;(e) psychology and psychiatry;(f) academic study or research relating to criminal law or criminology;(g) independent inspection and scrutiny of the criminal justice system;(h) the investigation of complaints;(i) the welfare of prisoners;(j) criminal justice reform and rehabilitation charities.(12) The Lord Chancellor may by order make provision for—(a) The term of office, resignation, and reappointment of panel members,(b) The renumeration of panel members, and(c) The budget of the panel.(13) For the purposes of this section—(a) “legislation” means— (i) an Act of Parliament if, or to the extent that, it extends to England and Wales;(ii) subordinate legislation made under an Act of Parliament if, or to the extent that, the subordinate legislation extends to England and Wales;(iii) a Measure or Act of the National Assembly for Wales or subordinate legislation made under such a Measure or Act;(b) “policy” means—(i) policy of the UK government;(ii) policy of the Welsh ministers.”Member’s explanatory statement
This new clause, along with others from Lord Marks to after Clause 19, would introduce an independent panel on sentencing and reducing reoffending, implementing recommendation 9.1 of the independent sentencing review.

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

My Lords, this group comprises Amendments 90 to 92 in my name and that of the right reverend Prelate the Bishop of Gloucester. I am extremely grateful to the right reverend Prelate not just for adding her name to these amendments but for her commitment to fairness and evidence in sentencing and criminal justice generally, which she has shown over a great time in this House. I am also grateful to the Prison Reform Trust for its help in preparing and presenting the amendments.

Together, the three amendments would establish a new panel on sentencing policy—to be called the independent advisory panel on sentencing and reducing reoffending—to advise the Government on sentencing and reducing reoffending. The new panel would be completely different from the Sentencing Council, which is an independent body that exists for a different purpose: to advise judges on sentencing within the framework of the law passed by Parliament.

The amendments would implement recommendation 9.1 of the independent review of sentencing, chaired by David Gauke, which has inspired the greater part of this Bill. The independent review was keen to get away from the focus on punishment in sentencing, and the further idea that punishment meant immediate imprisonment or incarceration—in the face of all the evidence that imprisonment is often ineffective in reducing reoffending.

The review highlighted the inescapable fact that the increasing use of imprisonment and the imposition of ever-longer sentences have led to the prison capacity crisis that this Bill is partly directed at addressing. The report recommended the establishment of an independent panel to focus government on maintaining a sustainable approach to sentencing. The review saw this independent panel as an external body of experts that would give the Government access to evidence-based expertise and give both the Government and the public impartial advice on what works in reducing reoffending and therefore cutting crime. These amendments would implement and take forward that recommendation. It must be the hope that the amendments and the new panel would bring about a change of approach, on the part of the press and the public, to sentencing and the treatment of offending in general.

Amendment 90 would establish the new panel with a duty to report annually to the Lord Chancellor, who would appoint its chair. Importantly, Amendment 91 would require the Lord Chancellor to refer government policy proposals on sentencing and reducing reoffending to the panel where such proposals had significant resource implications.

The panel would advise the Government on the evidence drawn from research, both in this country and internationally, on what works in reducing reoffending, as well as on the value for money and likely effect of government proposals. The Lord Chancellor would be bound to respond to the reports of the panel and to lay both the reports and the response before Parliament. It is to be hoped and predicted that Parliament and the public would be better informed about the thinking and evidence behind sentencing policy, which is often misunderstood.

These proposals mirror those by the Justice Committee of the House of Commons, the think tank Transform Justice, the Sentencing Academy, the Prison Reform Trust and the Centre for Justice Innovation. They represent a missing item on the agenda of sentencing reform. I urge the Government to accept these proposals. I beg to move.

[The Lord Bishop of Gloucester]

My Lords, I will make a few brief comments; I am aware of time, and there is a lot to get through. I wholeheartedly agree with the remarks made by the noble Lord, Lord Marks, and I thank him for his kind comments.

When it comes to sentencing, I have believed for many years that we need more independence and not less. My own submission to David Gauke’s sentencing review focused on this, and, as has been said, followed the Justice Committee’s recommendations—I ought to underline that—in its own inquiry on public opinion and the understanding of sentencing.

I am very grateful to the noble Lord, Lord Marks, for using language about “a change of approach”, because it is important that we get away from making legislation based on a public narrative that is not based on evidence—so-called penal populism. How do we enable the Government to remain focused on maintaining a sustainable approach to custody and facilitate greater scrutiny of the impacts of policy and legislation on prison and probation without the constant pressure from that public narrative, which is affecting the way we do our sentencing? The aim of these amendments, which uphold the principles of independence, is to support Ministers to make objective, evidence-based policy in the midst of all the pain and loss that come through crime.

A couple of years ago, I was in the Netherlands looking at its criminal justice system. Ministers there were horrified at how the public can so affect the way that Ministers act—at how people can beat a path to the door of Ministers, which then affects legislation. The Netherlands has decoupled the way Ministers make legislation and the independent factor, which is what we want to do here. I wholeheartedly agree with these amendments, and I look forward to the Minister’s response.

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

My Lords, I am grateful to the noble Lord, Lord Marks, and the right reverend Prelate the Bishop of Gloucester for these important and thoughtful amendments. They seek to give effect to a recommendation from the Independent Sentencing Review, by David Gauke, which would involve creating an independent advisory body that would provide greater scrutiny of the impacts of policy and legislation on the criminal justice system. I absolutely understand the sentiments behind these amendments, and we recognise that this Bill represents a big change to sentencing in the future and that the Government will need timely advice from voices of expertise and experience. I have worked with some of the organisations the noble Lord, Lord Marks, referred to and hold them in the highest esteem.

The Government do not believe that it is right to legislate for a new statutory panel at this stage, but I will say a little about how we think we can take forward the spirit of this. There are already many advisory and oversight authorities for prisons and probation, many of them with statutory remits. However, we will certainly continue to consider whether the creation of a new advisory body is the appropriate mechanism to ensure greater scrutiny and greater effectiveness of the impacts and outcomes of policy and legislation in this area.

Although we are considering this recommendation from the Independent Sentencing Review carefully—I hope I have made it clear that we take it very seriously—we do not support an amendment at this time. As I hope the Committee will understand, creating such a panel requires a good deal of thought about its purpose and responsibilities and how it could fit within the panoply of organisations that already advise the wider criminal justice system. It is already a Rubik’s cube.

As noble Lords will know, the Government are undertaking an ongoing review of arm’s-length bodies, and this sets out clear principles, including ministerial policy oversight, avoiding duplication—that is very important—and improving efficiency. So we are not clear that the creation of such a body in statute, as this amendment would do, would quite align with these aims. So, although we do not accept these amendments today, I assure the noble Lord, Lord Marks, the right reverend Prelate the Bishop of Gloucester and indeed the whole Committee that the Government will continue to consider this recommendation.

On the observations of the noble Lord, Lord Marks, and the right reverend Prelate about improving the understanding of the press and the public, we are certainly in the market for anything that will improve their understanding of how the criminal justice system, particularly sentencing policy, works. So I hope this reassurance about the seriousness with which we take the spirit of David Gauke’s recommendation, and indeed the amendment, enables the noble Lord to withdraw the amendment at this stage.

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

My Lords, I am grateful to the noble Lord, Lord Lemos, for his response and his understanding. I am, however, disappointed that he is not prepared at this stage to commit to putting this recommendation into statute. It seems to me and the right reverend Prelate Bishop of Gloucester to be an important feature. If his concern is that we should continue to try to inform the press and public of what sentencing is about, and of what government policy on sentencing and reducing reoffending is about, then the formation of this body is very important. If the formation of this body is very important, why should it not be sanctioned by statute?

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[Baroness Hamwee (LD)]

The noble Lord reminds me of a comment that was made, I think, during the proceedings on this Bill, but which is certainly apt. The online world and what my generation would regard as a different, real world have actually come together, and it is one world now.

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

My Lords, to follow on from what my noble friend Lady Hamwee has said, we on these Benches support this amendment, for all the reasons given and explained at length by the noble Lord, Lord Russell of Liverpool.

I will add one point. We heard yesterday in the discussion on restricting jury trials about defendants gaming the system, with which, in the context of jury trials, I do not entirely agree. It undoubtedly happens some of the time, but not all of the time, because it is not a reason generally for electing a jury trial. The noble Lord, Lord Russell, has illuminated the degree to which defendants who are guilty of particularly nasty offences can game the system by retaining their cases in the magistrates’ court and avoiding committal to the Crown Court for sentence or trial. I am bound to say that his amendment shows an ingenious solution to that, by seeking to extend the unduly lenient sentence scheme. We support it on that basis as well.

[Lord Sandhurst (Con)]

My Lords, I can be brief. Amendment 93C, in the name of the noble Lord, Lord Russell of Liverpool, seeks to extend the unduly lenient sentence scheme so that for victims of technology-assisted child sexual abuse, and where the victim is a minor, their next of kin should be able to refer sentences to the scheme, regardless of the level of court where the sentence has been passed.

The noble Lord explained the rationale for his amendment eloquently and elegantly, and with clarity. His detail was illuminating. This is a narrowly framed and entirely reasonable proposal. Technology-assisted abuse does not respect borders or ages, and is often complex, cross-jurisdictional and deeply traumatic. It cannot be right that a victim’s ability to challenge an obviously lenient sentence depends on the court level at which the matter has been disposed of and in which the perpetrator was tried.

This amendment would close that gap and ensure parity of access to this important review mechanism for victims of what are in fact some of the most serious and distressing offences dealt with by our criminal justice system. It would, we believe, stop the system being gamed, to the advantage of the offender and the disadvantage of the victim. It would strengthen accountability without widening the scheme beyond its existing remit. This is a practical, victim-centred improvement and we urge the Minister to give it serious consideration. I ask: if not, why not?

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[Baroness Hamwee (LD)]

My Lords, Amendment 139C takes a rather different approach to the adjudication system. Not for the first time, “The Archers” has drawn to aficionados’ attention issues that we had not considered before, and the adjudication system is a current example. I cannot say that I listened to every episode—although I make quite an effort to do so—but, in that context, an offender who was coming to the end of his sentence had a weapon planted in his cell. He was very worried that he was going to be on the wrong end of an adjudication and that his sentence would continue.

I understand that the current system is handling much larger numbers than would have occurred to me. In a three-month period last year, there were almost 69,000 adjudication outcomes, punishments rose and additional days were imposed more than 1,500 times. I was interested in the consistency between prisons and different governors. The Minister has told us that he gets reports about education and activities. I do not know what comparative records are kept by the MoJ about adjudication outcomes—I am sure that records are kept—and I do not know whether the Minister can comment on that tonight.

I was interested for another reason. I read somewhere —although I could not track it down again—a concern about the quasi-judicial nature of these decisions, which are made without recourse to appeal and without any of the other protections that one might normally see. Again, I would be grateful if the Minister has any comments to share. He had no warning of my asking these questions, so it is probably not fair to expect anything tonight, but I would like to place my concerns on the record. Perhaps he can write later, if he or the MoJ have anything to say.

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

My Lords, this has been an interesting group. When the concept of earned progression was originally floated and considered by the Government, considerable stress was laid both on the Texas model and on the concept that there should be an element earning release rather than simply being told that you would be released unless days were added. I agree with the proposition that the concept of earned progression should involve a combination of reward and deterrence. To put it informally, there should be carrot as well as stick.

I also agree—I am sure the Minister does too—that the Bill introduces a scheme of early release provided that no delay on release has been imposed for bad behaviour. Having thought about this, I accept that it is a difficult challenge to import into the Bill more opportunity to earn release by engaging with opportunities for rehabilitative activities in the widest sense. It is certainly difficult to do so without damaging the Government’s desire to ensure that the prison population is limited and reduced.

I was attracted by the amendment from the noble Lord, Lord Carter, in particular by the way he introduced it and his reasoning. It would give a role to the Parole Board in recognising a prisoner’s earning release. While I found many of the arguments from the noble Lord, Lord Bach, persuasive—as I always do—I remain concerned by the element of compulsion in the amendment that would prevent some offenders earning release, through no fault of their own, if they were unable, for whatever reason, to participate in rehabilitative activity. I will be very interested to hear the Minister’s response.

On these Benches, we would welcome proposals from the Government to introduce a measure of incentive to the earned progression model. As I understand it, currently when days are added, there is a quasi-judicial determination by a district judge. One would hope that such a district judge hearing an added-days case would always take into account a prisoner’s progress towards rehabilitation. However, that could be further developed to introduce some statutory element, whereby added-days hearings would always take into account any progress that the offender had made.

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[Lord Bach (Lab)]

My Lords, I thank the Minister and all other speakers in this interesting debate on this important part of the Bill. I thank the noble Baroness, Lady Lawlor, and the Opposition Front Bench for their support, and the noble Lord, Lord Marks, although I have one remark for him before I sit down.

The noble Lord accused me, in the nicest possible way, of wanting this to be compulsory. I hoped it was a little bit more careful than that. I am saying that it is for the Government to decide, if progress is made in this area—I venture to think that that might take some time—that they might then bring in a regulation which would have a compulsory element, no doubt with exceptions. My amendment definitely does not seek a compulsory change from the Bill so that it is important that every offender has to have done some purposeful activity. That is not the intention of the amendment; it is to leave it to the Government, but to ask them to bear it in mind when the time is right. Sorry, I put that rather clumsily, but I think he will know what I mean by that.

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

If I may say, it was only the use of the word “unless” that caused me to think there was an element of compulsion.

[Lord Bach (Lab)]

I will leave it there. Of course I am going to withdraw the amendment, but this is an important point that we should consider now and in the months to come. I beg leave to withdraw my amendment.

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[Baroness Bennett of Manor Castle (GP)]

I thought so, but I got confused.

Amendment 118 responds to a serious problem: automatic release after 56 days of individuals who have been recalled specifically because they breached the licence condition relating to the victim of the original offence. In other words, they have shown, as the noble Lord, Lord Russell, said, that they are willing, even while on licence, to breach restrictions designed to keep that victim safe. This is a behaviour that may indicate continuing risk, which, under Bill as it stands, will not be assessed before release.

The victims, overwhelmingly women in these circumstances, must not be put in this potential danger. The amendment is essential to ensure that if there is a victim-related breach, the individual is not released automatically. If necessary, the case must go before a parole board—an expert independent body whose very purpose is to assess risk. The Government have been very clear through the Bill that their aim is to ensure that public safety remains paramount. This amendment seeks to deliver on that aim.

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

My Lords, I wish to speak to my Amendments 111 to 113. When asked by the Deputy Chairman, I said that I did not wish to do so, but that was because I did not realise that we had jumped an amendment.

These three amendments concern recall for a fixed term. The first point is the question of whether recall should be for a maximum of 56 days rather than a fixed period of 56 days. As presently structured, recall to prison is to an automatic release date 56 days after the recall occurs. The purpose of my three amendments is both to make the 56-day period a maximum period, not a fixed period, and to make automatic release subject to the exclusion in those cases where it applies—and in that it has much sympathy with the amendment moved by the noble Baroness, Lady Bennett, on behalf of the noble Baroness, Lady Jones of Moulsecoomb. The process for determining the period will need to be fixed by regulations, but the intention is clear, and I am happy to discuss how substituting a flexible period for a fixed period might be implemented.

The fact is that recalls happen for a number of reasons, some of which may be relatively trivial breaches of conditions. I am concerned—as was my honourable friend Jess Brown-Fuller, the MP for Chichester, who moved similar amendments in the other place—about the effect of a blanket fixed period of recall irrespective of the seriousness or otherwise of the breach that brought about the recall, and believe it may be inappropriate.

It may be that 56 days or eight weeks, which is quite a long time, is far too long for a prisoner who faces recall for missing a probation appointment, for example. It would almost inevitably interfere with work where an offender had found work. It could interfere with housing and educational or rehabilitative programmes in the community. Community programmes are, I understand, typically held open for four weeks, so eight weeks would mean that they were closed. An eight-week recall might have a damaging effect on mental health treatments which a recently released prisoner was undertaking. Addiction programmes might be undesirably affected. A shorter recall might avoid that.

Furthermore, an unnecessarily long recall for a minor infringement of conditions would do nothing to reduce the prison capacity shortage as it continues, while a shorter recall would mitigate it. Other recalls may be much more serious. In such cases, 56 days may be too short a period. The 56-day automatic release provision in our Amendment 113 would take effect subject to the provision excluding automatic releases in serious cases, so that those who had committed more serious offences would not be automatically released at the 56-day point. That might be particularly appropriate if an offender who had been guilty of domestic abuse or stalking had been recalled for intimidating, harassing or stalking their victims. While they would presently be required to be released under the proposals as I understand them, our amendment would rectify this.

[Lord Keen of Elie (Con)]

My Lords, the amendment in the name of the noble Lord, Lord Russell of Liverpool, would make the cause of an offender’s recall a necessary consideration when determining whether the offender should be released at the end of the automatic release period. This is a prudent approach. We do not want people with a record of breaking probation conditions given the chance to do so again after just 56 days. We therefore support the aim of the noble Lord’s amendment.

Sentencing Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Wednesday 3rd December 2025 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

122: After Clause 31, insert the following new Clause—
“Powers of the probation service to impose and vary conditions of supervision(1) Where an offender is—(a) subject to a community order, a suspended sentence order, or a period of probation supervision, and(b) required to reside at a specified address as a condition of that order or supervision,the Probation Service may, in accordance with this section, direct that the offender reside at an alternative address.(2) A direction under subsection (1) may be given where—(a) it is necessary to protect another person (including a partner, former partner, or family member) from risk of harm, (b) it is necessary for the effective management or rehabilitation of the offender, or(c) it is otherwise in the interests of justice.(3) Where the probation service has made a direction under subsection (1), it may recommend or determine other terms of supervision, including—(a) restrictions on contact or association with specified individuals,(b) requirements relating to participation in programmes addressing offending behaviour, or(c) curfew or exclusion requirements, subject to approval by the sentencing court.(4) Where a direction or variation made under this section materially alters the conditions imposed by the sentencing court, the probation service must—(a) notify the court and the offender as soon as possible, and(b) seek approval by the sentencing court of the varied terms within 14 days, and in the absence of such approval the variation of the terms will not be effective.(5) Any direction or variation made under this section shall not have effect as if imposed by the sentencing court, until it has been approved by the court.(6) In this section, “the probation service” includes any person or body authorised to supervise offenders under the Offender Management Act 2007.”Member's explanatory statement
This new clause would give the probation service the power to change the residence requirement of an individual subject to supervision in certain circumstances, and to make other changes to the terms of supervision, subject to confirmation by the sentencing court.

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

My Lords, my Amendment 122, which is on page 25 of the Marshalled List, would give the Probation Service the power to change the required residence of an offender under supervision, and to make necessary consequential changes to the probation conditions and terms that apply to that offender’s probation. Any such change would, however, be subject to the approval of the sentencing court.

This amendment is about trusting probation officers to do their job by giving them the power to tailor probation terms to the needs of individuals under their supervision. It would have the incidental benefit of saving the court’s time. The safeguard is, however, the requirement for approval by the sentencing court, but it is to be imagined that in most cases that would be a formal procedure. It is right that the sentencing courts have ultimate control, but I would confidently expect the proposed changes sought by probation officers to be approved.

This amendment is all about trusting probation officers to tailor the probation over which they have supervision to the needs of individual offenders. I beg to move.

[Lord Sandhurst (Con)]

My Lords, I will speak briefly to Amendment 122, in the name of the noble Lord, Lord Marks of Henley-on-Thames, which concerns the power of the Probation Service to vary residence requirements and associated conditions of supervision.

I begin by saying that we on these Benches appreciate the intention behind the amendment. The ability to move an offender from one address to another, particularly where there is a risk to a partner, former partner or family member, is plainly necessary in some circumstances. The Probation Service must have the tools to protect victims and to manage offenders effectively. This amendment seeks to provide a clearer statutory framework for doing so.

The amendment rightly provides that, where the Probation Service makes any such variation, it must return to the sentencing court for approval within 14 days of the confirmation. That is an important safeguard; the offender, the interested parties and the court must all be properly kept in the picture. However, we would welcome greater clarity from the Minister on how, in practice, the Probation Service would assess necessity, ensure proportionality and manage the additional administrative and supervisory burdens that such powers might create. Probation must also be properly resourced and supported.

We are also mindful that changing an offender’s residence could have profound consequences, not only for supervision and risk management but for the offender himself, in the form of employment, family ties and wider stability that underpins rehabilitation. The threshold for such a direction must therefore be robust, evidence-based and truly transparent.

In that spirit, I hope the Minister can reassure the Committee that the objectives behind this amendment—protecting victims and enabling better offender management—are achievable within existing powers, or, if not, that the Government will consider whether a more tightly defined mechanism might be appropriate. We are grateful to the noble Lord for raising these issues, and we look forward to hearing the Government’s response.

[Lord Timpson (Lab)]

My Lords, it is, and should remain, the role of the court in sentencing to determine the requirements that should apply to a particular community sentence and how they are varied. As the noble Lord, Lord Marks, set out, it is vital that risk is managed quickly and effectively. This is particularly important in cases where, for example, domestic abuse is of concern.

Where an individual has been sentenced to a community or suspended sentence, probation practitioners undertake comprehensive assessments to ensure that risk is identified throughout an order and managed early. This means that they can take appropriate action to respond to that risk, ensuring offenders are monitored effectively. This includes applying to the court, where appropriate, which has powers to vary the requirements of a sentence, including the powers to revoke a community order and to resentence, where it would be in the interests of justice.

We are creating a new domestic abuse flag at sentencing so that domestic abusers are more consistently identified. This helps prison and probation services manage offenders effectively and ensures that victims are better protected. Before making a relevant order containing a residency requirement, the court must consider the home surroundings of the offender.

The court can already give probation the power to approve a change of residence when requested by the offender—for example, where an offender would like to move closer to where they were undertaking a programme or to their place of employment. Offenders released on licence from a custodial sentence can already be required to comply with residence obligations. These can be varied as required, either by probation or the Parole Board, as appropriate, depending on the offender’s sentence.

To be clear, if an offender fails to comply with the terms and conditions of an order, they can be returned to court to face further penalties, including custody. I hope the noble Lord will agree that there are sufficient existing processes in place, and I urge him to withdraw his amendment.

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

I am not sure that I understand the rationale for saying that there are already existing powers in the Probation Service. That is something I wish to talk to the Minister about, and I am sure he will be happy to do that. We are very keen that the Probation Service be trusted to make such alterations on its own, subject to the approval of the sentencing court. We absolutely agree on that. However, currently I am not quite sure where the Government stand on this. It appears to me that they are too reliant on the sentencing court and too little reliant on the Probation Service, but I am sure that that is something we will discuss. While we discuss that, I beg leave to withdraw this amendment.

Amendment 122 withdrawn.

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[Baroness Chakrabarti (Lab)]

I am sorry. It is nearly Christmas, and it is late.

There are policies that sit on shelves in Westminster and Whitehall for many years, and over the years and the decades people reach for the shelf and pull them off. It is very easy to blame civil servants, but the special adviser class—a cross-party class—have their files on the shelves too, and this naming and shaming thing has been doing the rounds for decades. Our lovely friends the special advisers are not here in the Chamber at this time; they are at the Spectator party or the New Statesman party or whatever it happens to be this evening, but naming and shaming of offenders is a really bad idea.

I agree with the noble Baroness, Lady Bennett. The one point of difference is that, if one were to be charitable, one would say it is really important that the public have faith and confidence in community orders. I agree with that, so I would support a slight alternative to this approach, so that we are not naming and shaming particular offenders but taking other steps to make very clear in the community that this was built, cleaned or done by offenders serving sentences in the community. That would achieve the best ambitions of this policy without the cruelty and humiliation that the noble Baroness rightly identifies. That is what I ask my noble friends the Ministers to take back to the department and reflect upon. I think that would be something the Government could think about before Report.

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

My Lords, I oppose this clause standing part of the Bill. It seems to me that everything that has been said by the noble Baronesses, Lady Bennett and Lady Chakrabarti, is right. I also agree with the suggestion by the noble Baroness, Lady Chakrabarti, that there is nothing at all wrong with saying that work of a particular kind was done by offenders as part of their community order. What I object to is, as she says, the naming and shaming.

But it goes further than that—it is, by definition, naming and shaming of offenders under supervision, because it is only offenders who are undertaking an unpaid work requirement who will be subject to this clause. I suggest that the compulsory photographing of such offenders—by probation officers, if you please—and the publication of those photographs and the offenders’ names, would be profoundly damaging. I, like the noble Baroness, Lady Bennett, regard this clause as likely to damage relationships between probation officers and their clients, undermine offenders within their communities and make it more difficult for those offenders to integrate within those communities. The clause is overwhelmingly unlikely to do anything to rehabilitate offenders or reduce reoffending. It is, in short, largely vindictive only. Since one can expect the publication of names and photographs mostly to be by local media outlets, such publication is likely to fuel hostility to offenders whom we are trying to rehabilitate among their community and likely to encourage what the right reverend Prelate the Bishop of Gloucester earlier today called “penal populism”, with what, I suggest, could be only damaging effects.

We completely accept the position put by the noble Lord that community sentences are punishment and are intended to be punishment. They are punitive in the sense of restricting an offender’s liberty and imposing requirements that may be onerous on offenders, but they are also primarily directed at enabling rehabilitation and reducing reoffending. For such sentences to work, friendly and constructive relationships between probation officers and offenders, their clients, under their supervision and efforts to enable those offenders to be settled in their communities are vital. These proposals are, frankly, inimical to those ends. I have come across no evidence whatever that this kind of naming and shaming will do any good or reduce reoffending in any way. I believe it can only do harm. For that reason, I oppose this clause, and I invite the Government to abandon it.

[Lord Bach (Lab)]

My Lords, I am a great supporter of this Bill, and I also believe in tough community sentences. I think they are essential if we are to keep people out of prison. But I have to say that on this issue I do not see any positive point arising out of this clause. In my experience of working with probation officers—a long time ago, but I dare say they are not that different now than they were when I was in practice—I cannot see the likelihood of any probation officer wanting to do this and thinking that it was helpful in terms of making sure that his or her clients behave themselves in future. I think this is an excellent Bill, but I do not think this clause should be part of it.

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Moved by

[Lord Marks of Henley-on-Thames]

138: After Clause 40, insert the following new Clause—
“Review of sentence following a change in law(1) Where a person is serving or subject to a sentence imposed for an offence, and—(a) the offence has been abolished, or(b) there has been a change in the law which materially alters the sentence that would be imposed for the same offence following that change in the law,that person may apply to the sentencing court, or to such other court as may be prescribed, for a review of the sentence.(2) On such an application, the court may—(a) quash the sentence and resentence the person in accordance with the law as so changed, or(b) make such other order as necessary in the interests of justice. (3) The Secretary of State may by regulations make provision for the procedure and eligibility criteria for applications under this section.”Member's explanatory statement
This new clause would allow a person still serving a sentence under a law that has changed to seek review or resentencing in line with the existing law.

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

My Lords, this group of two amendments in my name and that of my noble friend Lady Hamwee addresses the position of the effect of changes in the law.

Amendment 138 would give a right of review to an offender serving a sentence for an offence that has been abolished, or where the change in the law has altered the sentence that might be imposed. The offender in such a case would be entitled to apply to the court to give them the benefit of the change in the law and seek a decision that the sentence should be quashed, or a resentencing on the basis of the law as changed, or an alternative order that was in the interests of justice. It is a simple amendment that would entitle an offender serving a sentence to say that the law has changed and that if they were sentenced today or tomorrow, they would not be suffering the sentence that they are now serving, so please change it.

Amendment 139 addresses changes in the law more generally. It would require the Secretary of State to review and report every three years on changes in the law that would affect those already sentenced, where their sentences would be different as a result of changes in the law. So we move from the particular in Amendment 138 to the general in Amendment 139. The report would cover the adequacy of existing mechanisms for addressing perceived injustice arising from such changes in the law. The report would be bound to include recommendations for change to address such injustices and also data on the numbers of offenders involved and the numbers of those still in prison.

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

My Lords, I will withdraw the amendment at this stage, but it is on the basis that I do not accept the criticisms of the detail of Amendment 138 made by the noble and learned Lord, Lord Keen. The fact that a sentence has to be suspended under the requirements of the Bill does not mean that it is necessarily a lesser sentence that would not have been passed. In relation to other sentences that would not exist or offences that have been abolished, it seems to me that Amendment 138 ought to be accepted.

I accept that there are considerations of spent convictions that may have a bearing on this, but I am not sure that we are in the same ballpark when we are talking about spent convictions and either quashing a conviction or resentencing as a result of a change in the law. As for the review and report on recommendations and data, I understand that the Government’s position is that such review is carried out. It would be helpful to know what the publicity for that exercise is and how far the public and everyone else is going to be made aware of the reviews that are carried out, but that is something that we can discuss informally, I dare say. In the meantime, I will withdraw the amendment, if leave is given.

Amendment 138 withdrawn.

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Moved by

[Lord Marks of Henley-on-Thames]

141: After Clause 41, insert the following new Clause—
“Suspension of driving licences during bail for driving related offences(1) This section applies where an individual has been granted bail in respect of one of the following offences—(a) an offence under section 1, 1A, 2B, 2C, 3ZB, 3ZC, 3ZD or 3A of the Road Traffic Act 1988;(b) an offence under section 4, 5 or 5A of the Road Traffic 1998.(2) The court may, as a condition of bail, suspend the driving licence of the individual, pending the outcome of any criminal proceedings.”Member’s explanatory statement
This new clause would allow the court to suspend the driving licence of an individual charged for certain driving offences, pending the outcome of the trial.

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

My Lords, this amendment, in the final group of what has been a very long afternoon and evening, would give the power to a court when granting bail to a defendant charged with the most serious driving offences to suspend that defendant’s driving licence pending the outcome of criminal proceedings.

To recap fast, the offences covered by the amendment are: causing death or serious injury by dangerous, careless or inconsiderate driving; causing death by driving unlicensed or uninsured or when disqualified, or by careless driving when under the influence of drink or drugs; driving or being in charge of a vehicle while unfit through drink or drugs; and driving or being in charge of a vehicle while unfit through having alcohol over the limit or controlled drugs over the limit.

The reason for this amendment is obvious. When a court grants bail, it is carrying out an exercise of balancing the public interest in not prejudging the guilt of a defendant before that defendant is tried against the other public interest of keeping the public safe. I contend that the balance is clear when a power formally to suspend the driving licences of defendants charged with these offences is under consideration. These are life-threatening driving offences, and suspending a licence as a condition of bail for such a defendant is entirely appropriate. The suspension may not always be imposed but for the power to be there seems quite clearly desirable. I beg to move.

[Lord Sandhurst (Con)]

My Lords, I am grateful to the noble Lord, Lord Marks of Henley-on-Thames, for bringing forward this amendment. It proposes as a condition of bail to allow the courts to suspend the driving licence of individuals charged for certain driving offences. The offences in question include causing death or serious injury by dangerous driving or by careless or inconsiderate driving, or by unlicensed, uninsured or disqualified drivers. In addition, it includes those charges relating to driving when under the influence of drink or drugs or above the prescribed limits.

Safety on our roads is of prime importance, and the police have the ability to impose driving bans as a condition of bail under the Bail Act 1976 to ensure that further driving-related offences are not committed by those charged while criminal proceedings are ongoing. Indeed, driving offences committed while on bail are rightly treated as a serious matter. None the less, the potential benefits of public safety must, in a country where you are presumed innocent until proved guilty, be balanced with the rights of an as yet unconvicted defendant. Individuals who are granted bail may be on bail for extended periods of time, during which they may, assuming that other conditions on work have not been put in place, still have to drive to their place of work, for example.

So far, the powers to impose a driving ban as a condition of bail have been operational matters for the police. That said, allowing the court to suspend the driving licence of an individual as a condition of bail pending the outcome of any criminal proceedings would be a preventative step to reduce the risk of further driving-related offences being committed. We thank the noble Lord for initiating this debate and look forward to the Government’s response.

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[Lord Timpson (Lab)]

I thank the noble Lord, Lord Marks, for this amendment, which seeks to give courts an express power to suspend the driving licence of individuals charged with specified driving offences as a condition of bail. We recognise that driving offences can have devastating consequences for victims and for their families and friends. Driving while under the influence of alcohol and drugs is a serious offence with potentially life-changing consequences.

There are already robust powers available to the police and the courts to impose bail conditions where there is a risk to public safety. This includes restrictions on driving where appropriate. In certain cases, courts may also impose an interim driving disqualification before sentencing. Road safety remains an absolute priority for this Government. The Department for Transport will shortly publish a new road safety strategy, and the Secretary of State for Transport has indicated that this will include a review of motoring offences. While I appreciate the importance of the issue raised by the noble Lord, given the forthcoming strategy and existing powers available I urge him to withdraw this amendment.

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

I ask the Minister to consider this. The power to suspend that is sought by this amendment would be a power exercisable by the court and therefore reportable to the DVLA, as a result of which the driving licence would be formally withdrawn. I am not sure that is true of a ban on driving imposed by the police as a part of bail. That is the importance of the suspension that I suggest.

[Lord Timpson (Lab)]

I thank the noble Lord and will very happily meet with him next week to discuss that, as I suspect that there may be other matters that we wish to discuss on this Bill. I would be very appreciative of that.

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

Pending those discussions, I beg leave to withdraw my amendment.

Amendment 141 withdrawn.