Independent Sentencing Review

Lord Marks of Henley-on-Thames Excerpts

Monday 2nd June 2025 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, the measures announced by the Government on 22 May are presented under the guise of necessity, but they risk eroding public confidence in our criminal justice system. This country has always stood for a system of justice that is firm and fair and can be trusted by the public, yet some of the proposals fall short of that standard. If the Government are truly committed to ensuring that violent and repeat offenders are properly punished, it is entirely within their means to create the prison capacity required. Instead, we are asked to accept a series of deeply troubling changes on the grounds that there is no alternative.

What do these reforms entail? It is a reduction in time served, including a proposal for many offenders to spend merely a third of their sentence in custody. Let us consider just one example. A burglar sentenced to 18 months and entering a plea of guilty might serve just 11 weeks in prison. That is scarcely credible as a deterrent, let alone for a justice system. Such outcomes can only erode confidence in our penal system. And what is to replace custodial punishment? We have heard of an expanded use of electronic tagging. While we support the appropriate use of technology, let us be candid: electronic tags are not a substitute for custody.

As mentioned by my right honourable friend Robert Jenrick in the other place, the Ministry of Justice’s own pilot scheme showed that 71% of tagged individuals breached their curfew. Is that the kind of protection that we are offering a law-abiding public? Meanwhile, over 17,000 individuals are currently on remand awaiting trial, a number that is forecast to rise still further. In the light of this, will the Government now act on the Lady Chief Justice’s call for additional court sitting days so that these cases can be heard and justice delivered without undue delay?

What of capacity? Under the previous Government, we delivered the largest expansion to the prison estate since the Victorian era. The Government’s prison capacity strategy mentions the construction of a mere 250 rapid deployment cells. That is hardly adequate. When Texas undertook similar reforms in the 1990s—the very model on which this plan is said to be based—it built more than 75,000 prison places.

The Government’s present approach to justice simply cannot inspire public confidence. We must ensure, and indeed the public expect, that the most prolific and dangerous offenders face the consequences of their actions, so I will press the Minister on several critical points. First, following the announcements made in the other place on 22 May, can he confirm without equivocation that violent sexual offenders and those who have committed crimes against children will be excluded from the early release schemes?

Secondly, given the review’s emphasis on reducing custodial sentences, what assurances can the Government provide that public confidence in the justice system, particularly among victims and their families, will not be undermined by these changes?

Thirdly, does the Minister agreed that electronic tagging cannot substitute for secure custody, particularly in cases involving violent or high-risk offenders?

Fourthly, what assessment have the Government made of the capacity of our prisons in light of the sentencing proposals, and will they commit to a robust and credible prison building programme that reflects the scale of these proposed reforms?

Finally, it is deeply regrettable that the voices of victims and their families appear to have been overlooked in this review. Can the Minister clarify why the Independent Sentencing Review appears to have taken such limited input from victims’ groups? Will the Government commit to a public consultation to ensure their voices are heard before implementing these recommendations?

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

My Lords, unlike the noble and learned Lord, Lord Keen, we welcome the Independent Sentencing Review. We also applaud the appointment of David Gauke to lead it. He was an inspired and independent choice and, despite some reservations with the report, we regard the tenor of the review as brave, principled and, most importantly, evidence based.

We also agree with the Government in their Statement that the previous Administration are largely responsible for the crisis in our prisons—our running out of prison space, the dilapidation of our prison estate, the ineffective approach to rehabilitation, to community sentences and to the Probation Service, and the continuing pervasive recidivism. These are the factors that got us into this mess, and they are largely the previous Government’s fault. The irony is that the previous Government claimed to be dedicated to law and order, just as the noble and learned Lord does now. Well, that is not their legacy.

Given the present position, on present trends and given the prison building plans—they are extensive, but there will inevitably be delays in their implementation—can the Government realistically hope to avoid the kind of stopgap emergency responses that we have found necessary over the last year?

Moving on, the proposals for three-part prison sentences and an earned progression model are persuasive. It is interesting that they originated in Texas—not a state known for soft liberalism. My understanding is that the Texan Government believed that these crime reduction measures would save the taxpayers’ dollar. Have the Government yet estimated the possible cost savings from these proposals overall?

We agree that we desperately need the increased investment in probation and probably even more investment. We regard the commitment to more tagging and community monitoring as clearly sensible. But I would be grateful if the Minister could say how far it is envisaged that tagged offenders will be confined to their homes, and what plans there are for work, education and training for offenders while they are tagged and under supervision.

Capping recalls to prison should prevent the use of recall to respond to relatively minor breaches of conditions with extended and disproportionate prison terms, but how will the individual length of these short recalls be determined? We on these Benches, along with the majority of experts in the field, have been arguing for years for a reduction in the use of short prison sentences, and I can see the argument for leaving some judicial discretion in place in certain circumstances. I see the noble Lord, Lord Ponsonby, nodding, and I know that he has had experience of short sentencing in his time as a magistrate. But we also agree that victims of domestic abusers and stalkers, and cases of breaches of protection orders, call for particular protection for victims. Nevertheless, may we have an assurance that, in practice, this reform will give the presumption against short sentences that we have long been seeking?

We accept the argument for making community sentences tougher and for intensive supervision courts, but we seek an assurance that the primary purpose of community sentences will continue to be to rehabilitate offenders and enable them to turn their lives around. We have concerns about the pilot of so-called medication to manage problematic sexual arousal, with its rather troubling overtones of chemical castration. Will the Government commit to careful monitoring of the long-term effects of such treatment?

Finally, we share the Government’s commitment to supporting victims, and that shines through this Statement. My noble friend Lady Brinton has been at the forefront of securing more compassionate treatment of victims, and the exclusion zones proposed will be an important new protection. But may we also have a commitment to making the criminal justice system more approachable and less traumatic for victims, particularly in cases of sexual violence? We have had some progress in this area but not nearly enough, hence the loss of so many cases. That would be a helpful complement for the Government’s principled commitment to ensure that women are less often sent to prison, and that women defendants are more compassionately treated by the criminal justice system.

[The Minister of State, Ministry of Justice (Lord Timpson) (Lab)]

My Lords, when this Government asked David Gauke and his independent expert panel to conduct a review of sentencing, its task was clear: our country must never run out of prison places again. I put on record my appreciation for all the panel’s work, including that of the noble and learned Lord, Lord Burnett, who is well known and respected in this place.

In considering its proposals, the Independent Sentencing Review has followed the evidence and looked at examples of good practice across the world. It is clear to me, as someone who has been searching for answers to these well-known problems for over 20 years, that the panel has carefully and methodically approached the challenges head-on. This review sets out major reform. It is an important moment for the justice sector, and one we cannot afford to ignore.

As the Lord Chancellor has set out, once again our prisons are running out of space. Let me be clear that we must always have space in our prisons for dangerous offenders. Despite building as quickly as we can, demand for prison places will still outstrip supply by 9,500 cells in early 2028. If our prisons collapse, courts must suspend trials, police must halt arrests and crime goes unpunished; we face the total breakdown of law and order in this country. Yet the previous Government, over 14 years, added just 500 places to our prison estate. At the same time, sentence lengths rose. It now falls to this Government to end this cycle of crisis.

That starts by building prisons. Since taking office just 11 months ago, this Government have opened 2,400 places. Last month, the Lord Chancellor announced an additional £4.7 billion for prison building, putting us on track to hit 14,000 places by 2031. This is the largest expansion since the Victorian era. However, the investment is vital, but it is still not sufficient. We need to do more. We cannot just build our way out of this crisis. This Government have been clear: we also need to both reform sentencing and end the cycle of reoffending.

The report’s central recommendation—the move to a three-part sentence called the “earned progression model”—means that offenders will not necessarily leave prison at an automatic point. Instead, their release date will be determined by their behaviour. Under the new model, offenders serving standard determinate sentences with an automatic release of 40% or 50% will now earn their release. The earliest possible release point will be at the one-third mark, with additional time added for bad behaviour. For those serving standard determinate sentences with an automatic release point of 67%, their earliest possible release point will be at 50%, with additional time added for bad behaviour. If they follow prison rules and behave well, they will earn an earlier release; if they do not, they will be locked up for longer. It is that simple.

That behaviour-based approach echoes the model that the Lord Chancellor witnessed in Texas. I have personally been fascinated by the Texan model for a number of years and have followed the outcomes achieved very closely, as the noble Lord, Lord Marks, clearly has as well. If you are a prison geek like me, this is what you seek: examples of what works—and it clearly does work. Its reforms, which started in 2007, have led to 16 prisons closing, to fewer victims and to lower costs of reoffending.

To address the concerns of the noble and learned Lord, Lord Keen, about these reforms applying to dangerous offenders, I assure noble Lords that these reforms will not apply to those serving extended determinate sentences, which includes the most dangerous offenders. I confirm that no sentences being served for terror offences or state threat sentences will be eligible for early release from prison. I can also confirm that the Government engaged with police colleagues and other stakeholders across the criminal justice system prior to the publication of the review, as did David Gauke. We wanted to ensure that we had a joined-up approach. The full detail of these policies, including an impact assessment, will accompany the forthcoming legislation.

Noble Lords have rightly raised questions about what these reforms will mean for victims, particularly victims of domestic abuse. My priority is clear: everything we do is in pursuit of a justice system that serves victims. If our prisons collapse, it is victims who pay the price. Our first responsibility is to make sure that this does not happen, which is why we consulted widely, as has David Gauke, with victims’ groups.

The review recommends several important measures, including the way we identify domestic abusers at sentencing so that we can monitor and manage them more effectively. We recognise how vital it is to make sure that we know who all domestic abuse offenders are, even when their offences are not obviously linked to domestic abuse. We also welcome the recommendation to expand the use of specialist domestic abuse courts. I also clarify for the noble Lord, Lord Marks, that the review did not recommend entirely abolishing short sentences. Under our proposed reforms, judges will retain the discretion to hand down short custodial sentences in exceptional circumstances, and I note that David Gauke’s review specifically references this, including giving respite to victims of domestic abuse.

To improve transparency in the system, we will also extend the provision of free sentencing remark transcripts for victims of rape and serious sexual offences. All these are necessary steps that I believe show that this Government have recognised the unique harms caused by violence against women and girls. Further steps will be outlined when, in the summer, we publish our 10-year cross-government strategy on violence against women and girls.

Noble Lords raised important questions about public protection and the role of probation. The Government recognise probation’s important role. In fact, it is more than important; it is vital. That is why we are increasing funding for probation by up to £700 million by the final year of the spending review—an increase of 45%. That will allow us to tag and monitor tens of thousands more offenders, which the evidence has shown cuts crime and makes our streets safer.

If we are to see more punishment in the community, it is essential that it works. That is why we are looking at new severe financial penalties that would see offenders’ assets seized even if they are not knowingly linked to crime, and expand the use of punishments, such as travel and driving bans, that would curtail an offender’s liberty.

I particularly draw noble Lords’ attention to the recommendation to expand intensive supervision courts. These impose tough conditions, including treatment requirements, with offenders regularly brought before a judge to monitor their compliance. If they do not play ball, the offenders get sent straight to prison. Intensive supervision courts work, especially with prolific offenders. Visiting the court in Birmingham remains the best day I have had in this job—I saw how it helps turn lives away from crime.

I also draw noble Lords’ attention to David Gauke’s recommendations relating to female offenders. My interest in prison started many years ago, when coming face to face with the realities of many women in our prisons. Too many women are victims of considerable trauma and abuse. They are vulnerable, addicted and mentally ill. Many are also mothers, and their imprisonment has life-changing impacts not only for them but for their children. Around two-thirds of female offenders sentenced to custody receive short sentences, and around the same number are victims of domestic abuse. I proudly chair the Women’s Justice Board, which we set up last year with the aim of closing a women’s prison and addressing the specific needs of this cohort. I am pleased to note that the review’s recommendations on short, deferred and suspended sentences will reduce the number of women in prison. This is an important step towards that objective.

I will inform noble Lords about some of the other areas of our focus to address the capacity crisis. The number of offenders recalled to prison has doubled since 2018, putting increasing pressure on the system. Today’s figure is around 13,000. The sentencing review makes sensible recommendations to address this increase, and it is suggested that, where offenders do not comply with the conditions of their release, recall to prison should be capped at 56 days. We have agreed to this policy in principle and will set out the precise details of these changes when we legislate.

In conclusion, in our response to the sentencing review, this Government will take the steps necessary to end the enduring capacity crisis we inherited and end the cycle of reoffending. To do that, we must agree with others that we have to build prisons on a historic scale, deport foreign national offenders faster than ever and speed up our courts. But we also must reform sentencing in a way that puts the justice system on a more sustainable footing. We now have the right ideas, the long-term funding and a Government determined to resolve this long-term crisis for good. I invite noble Lords to engage with me as we pursue this much-needed reform.