Sentencing Council Guidelines

Lord Marks of Henley-on-Thames Excerpts

Thursday 3rd April 2025 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, two days ago, magistrates and judges across England and Wales were, in effect, blindsided. At midday, they were informed that sentencing guidelines that they thought had come into force had in fact been suspended. The courts would have been sentencing offenders under guidelines that the Lord Chancellor herself now admits are fundamentally flawed. These are guidelines which, she has stated, would inflict a “two-tier” system of justice, undermining fairness and consistency in our courts.

In addition, buried in the very email sent to judges and magistrates, the Sentencing Council somewhat audaciously declared that

“we remain of the view that the guidelines are necessary and appropriate”.

While the Lord Chancellor advised in the other place on Tuesday:

“I believe that we must reverse them”.—[Official Report, Commons, 1/4/25; col. 183.]


So the Lord Chancellor says one thing and the Sentencing Council continues to say another.

This situation was entirely preventable, had the Lord Chancellor put party politics aside weeks ago and backed, rather than blocked, the Bill that my right honourable friend Robert Jenrick introduced in the other place. This Bill would have restored accountability and given the Lord Chancellor the power to govern justice policy. We may welcome the belated introduction of the Lord Chancellor’s Sentencing Council Bill, although I express regret that it had to come to this. However, we should be clear that the proposed Bill does not address the core of the problem, which concerns the status and accountability of the Sentencing Council.

There have already been concerns about other aspects of the Sentencing Council guidelines. Public reference has been made to the guidelines on immigration offences, although I understand that they are debated and indeed disputed. Further concerns have been expressed about guidelines on the provision of bail, where there is particular reference to the priority of ethnic minorities and transgender offenders. That also is a potentially discriminating practice that should not be maintained in our criminal justice system.

What is now required is a calm and considered review of the entire situation, rather than just a knee-jerk reaction Bill that addresses a symptom rather than a cause. I therefore invite the Minister, on behalf of the Government, to commit to a comprehensive review of all Sentencing Council and Ministry of Justice guidance on sentencing policy and bail policy, which should properly rest with the Government in the form of the Ministry of Justice and not with a wholly unaccountable Sentencing Council—however high a regard we have for those who sit in that council.

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

My Lords, the Lord Chancellor maintains that this Statement raises issues of principle, that it is about policy being for Parliament and not for judges, and that the Sentencing Council has breached the principle of equality before the law. We hear complaints from the Conservatives in particular—the noble and learned Lord, Lord Keen, is no exception to this, and it is unsurprising that I take a different view from him—of judicial overreach and of a two-tier justice system. However, all in this House are committed to equality before the law.

The background to the new proposed guidelines is the wealth of evidence, almost entirely undisputed, that ethnic minority defendants are more likely to be sent to prison than white defendants. Yesterday I mentioned the Lammy review, but there is so much more. This inequality of outcomes must be addressed; it is the very opposite of equality before the law.

Pre-sentence reports are a vital tool that enable judges to take into account the circumstances of an offender as well as the nature of the offence for which he is before the courts. The Lord Chancellor appears to accept that. The only other significant assistance a sentencing judge receives on an offender’s background and circumstances is the speech in mitigation from defence counsel. Although speeches in mitigation are powerful tools, they are made by defence counsel on the instructions of the defendant, so they are neither independently prepared nor impartial. They also cannot generally be independently verified, as pre-sentence reports can.

So we need these reports, and they have long been intended to be the norm not an optional add-on, yet resources for these reports have, in effect, been rationed. The Probation Service was hopelessly mishandled by the last Government, and one result is that there is not enough money to fund the number of pre-sentence reports we need. The noble Lord, Lord Timpson, yesterday gave the figures: the number of pre-sentence reports is down by 44% between 2013 and 2023.

The letter from the chairman of the Sentencing Council to the Lord Chancellor on 10 March explained the very thorough process that had led to these new guidelines, in the context of the statutory duty imposed by Parliament for the Sentencing Council to give guidelines to judges on sentencing. Part of the reason behind establishing the Sentencing Council was precisely to encourage consistency in sentencing—that is, equal treatment before the law—yet now we have the Government resorting to hastily drawn and unhelpful emergency legislation that tries to address a complex issue in simplistic terms. The operative section would provide that

“sentencing guidelines about pre-sentence reports may not include provision framed by reference to different personal characteristics of an offender”.

A subsection goes on to say that the “personal characteristics” may include—not must include—

“in particular … race … religion or belief … cultural background”.

The cohorts identified by the Sentencing Council as normally calling for a PSR include being a young adult, female, pregnant, or postnatal. Are those not personal circumstances and are they not relevant?

The solution to this is not emergency legislation. The emergency has now passed because the Sentencing Council has paused introduction of the guidelines. This emergency Bill has not yet had a Second Reading, and I therefore invite the Government to withdraw it now and end this unnecessary row. It is unseemly and widely regarded as such by the public. I suggest that the solution lies in rational and moderate discussion between the Sentencing Council, the Lady Chief Justice and the Government, to which Ministers in this House from the Ministry of Justice would have an important contribution to make.

The first aim would be to reach a solution that ensures that pre-sentence reports are properly funded so that they become the norm once again in all cases where a substantial prison sentence is not inevitable. The second would be that we recognise these reports play an important part in addressing and reducing the inequality of outcomes for ethnic minority defendants—this must be a major priority of the Government. The third would be that we all respect and ultimately achieve genuine equality before the law.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, I thank both noble Lords for the points they have made and the questions they have asked. To set the scene, we believe the guidelines, as formerly suggested, risk differential treatment before the law, and that is why we opposed them. We asked the Sentencing Council to revise the guidelines, and it did not do so. The Lord Chancellor introduced legislation a couple of days ago to address the specific issues to which the Government object, and the Sentencing Council has put its guidelines on hold while Parliament has its say on these matters. The Lord Chancellor has gone further than this: she has committed to reviewing the role of the Sentencing Council more broadly and is considering all options. We are grateful to the Sentencing Council for pausing the introduction of the guidelines so that Parliament can have its say on the Bill that has been introduced.

The noble and learned Lord, Lord Keen, referred to the Conservative Party’s proposed Bill. We believe that that Bill goes wider than necessary, and the Bill that the Government are putting forward is addressing the specific point within the guidelines to which the Government object, but we acknowledge that there are wider considerations, and that is why my right honourable friend has put in place this wider consideration of the role of the Sentencing Council and its recommendations. I reject the noble and learned Lord’s assertion that magistrates and judges were blindsided. I do not think they were, and I do not think there would have been any inadvertent sentencing. I reject that accusation. I think there is a core problem here, which my right honourable friend has acted swiftly to address.

I agree with a lot of the points made by the noble Lord, Lord Marks. I was just reflecting that, in my previous role as a magistrate, I would have ordered many hundreds of pre-sentence reports, but I am conscious that, sitting in this Chamber now, there are colleagues who would have ordered many thousands of pre-sentence reports throughout their career. Of course, I agree with the points he made that they are an invaluable tool for anybody seeking to sentence in our criminal courts and that they had been degraded under the previous Government in their use and, to be frank, in the trust they were held in by sentencing magistrates or judges. It is very much the current Government’s intention to increase the number of probation officers—there were 1,300 more last financial year and there will be another 1,000 in the current financial year, and it is very much anticipated that there will be an enhanced role for the probation services as we move forward with future recommendations on sentencing, which are imminent. I agree with the general points that the noble Lord made about the importance of pre-sentence reports, and we want to build on that.

On the point the noble Lord made about the wider cohorts which are not explicitly referred to in the published Bill, I make the point that any judge or magistrate can always order a pre-sentence report as they wish. That has always been, and remains, the situation. Just because a specific cohort was not referred to in the Bill does not mean that judges cannot go ahead and order pre-sentence reports as they see fit. Nothing has changed in that context.

In conclusion, this is clearly a difficult situation. However, the Lord Chancellor has strong views on these matters, and it is of utmost importance that the wider public have, and continue to have, faith in our court system and the judiciary, which the Government certainly hold in the highest regard.