Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Thomas of Cwmgiedd Excerpts

2nd reading
Wednesday 7th May 2025 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

May I add very briefly to the remarks of the noble Baroness, Lady Hamwee, about the late Lord Etherton? He was a lawyer of the highest ability. He had great skill and was a man of real quality. I worked with him for many years at the Bar, and as a colleague on the Bench. All those qualities were shown in abundance in what he achieved in that period. But he also achieved a great deal in this House and took on number of causes that some might not have found popular. He was a great man and will be greatly missed.

I turn very briefly to make three points about the Bill. First, although we have been accorded a long time to speak, I do not intend to take advantage of that to repeat what I already said at length prior to the Easter Recess. I explained then why I thought the Bill was not necessary, and I regret that the Government feel it is. I very much hoped then—and still hope today—that this issue can be resolved without legislation, but I will not repeat what I have already said to that end.

Secondly, I agree with the Minister that this is a very narrow Bill. That is no excuse for not getting it right, but it is a narrow Bill. It is important to note that it is not the occasion for the kind of wide-ranging issues such as those raised by the noble Lord, Lord Jackson of Peterborough, to be raised. Therefore, I do not intend to answer them. If they are raised on a subsequent occasion, that will be the appropriate time, but this is a narrow Bill.

I say that because I think it is important that the Sentencing Council and its predecessor bodies, the Sentencing Guidelines Council and the Sentencing Advisory Panel, have worked well, although I ought to declare that I was a member of the Sentencing Guidelines Council, had a hand in setting up the Sentencing Council and was its president for four years until 2017. If we look at what it has done and analyse the constitutional position, I do not believe there is any basis for making any real change. It has been a great success as it brings together two arms of the state, the judiciary and the Executive, under the supervision of the third arm, Parliament, in producing a very sensible way of dealing with balancing the role of Parliament in setting policy and the role of the judiciary in sentencing individuals. That is a complex issue, and I would like to leave it for an occasion where it properly arises. It does not arise today.

Thirdly—this point does arise today—there is the definition of personal characteristics. This has already been touched on by the noble Baroness, Lady Hamwee. I think it could, with advantage, be clarified. It would be helpful to understand why the definition is different to the definition of protected characteristics in Section 4 of the Equality Act. I note that the Minister has already referred to the remarks made by Sir Nicholas Dakin in the other place on 30 April, where he said

“we are clear that it is intended to cover a wider range of characteristics including sex, gender identity, physical disabilities and pregnancy status”.—[Official Report, Commons, 30/4/25; col. 388.]

There are a lot of other characteristics. Before trying to amend it, it would be helpful to have a clear explanation—I have given the Minister notice of this—of why the course chosen has been chosen.

That is more important in the light of paragraph 14 of the Explanatory Notes, as it uses the term “particular circumstances” of individuals in apparent contradiction to “personal characteristics”. I am not sure that I understand the difference. It would be helpful if the Minister could try to explain it. In any event, with that explanation, we can look forward to amending—I hope with considerable advantage—this part of the Bill without anyone being accused of wrecking it.

Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage
Wednesday 4th June 2025 Lords Chamber

[The Lord Bishop of Gloucester]

My Lords, like other noble Lords, I have already registered my feelings about the Bill at Second Reading and in Committee. Now that we have had the publication of the Independent Sentencing Review and the Government’s response, I reiterate the point that, like others, I simply do not believe that we need this legislation. It seems that the left hand is not aware of the right hand on the evidence around sentencing.

I agree with what has been said already. Amendment 8, in my name, seeks something very specific: to ensure that existing sentencing guidelines relating to the mitigating factor of pregnancy, childbirth and postnatal care can continue to provide directions for courts to obtain pre-sentence reports for offenders who are pregnant or primary carers of young children. Without this amendment, the Sentencing Guidelines (Pre-sentence Reports) Bill directly contradicts the Government’s stated policy intent to reduce the imprisonment of pregnant women and mothers of young children.

On 22 May, in her response to the Independent Sentencing Review, the Lord Chancellor explicitly stated the Government’s intent to reduce the imprisonment of pregnant women and mothers of young children. She said:

“I am particularly keen to ensure that pregnant women and mothers of young children are not anywhere near our female prison estate in future”.—[Official Report, Commons, 22/5/25; col. 1204.]


Indeed, the Independent Sentencing Review

“recognises the harm caused by imprisoning pregnant women and believes pregnant women and new mothers should be diverted and supported in the community, unless in exceptional circumstances. Custody must only be a last resort”.

How, then, are we to achieve this, when the Bill makes unlawful the existing Sentencing Council’s mitigating factor—pregnancy, childbirth and postnatal care—which came into force on 1 April 2024 and directs courts to obtain PSRs for pregnant and postnatal offenders? I am very grateful to the Minister for writing after Committee, but he confirmed—extraordinarily—that the Bill will render such direction about obtaining PSRs across existing sentencing guidelines unlawful. I query his assumption that, without direction, sentencers might request a PSR. This is a backward step. Simply put, without a pre-sentence report, alternatives to custody cannot be considered by a sentencing court. Without a mandatory direction to obtain a PSR, there is no way to ensure that women are diverted from custody. Without this amendment, the Bill directly contradicts the Government’s stated policy intent. I recognise the very difficult position that the Minister has been put in, but I am simply looking for the Government to have the grace to admit this contradiction and to accept this amendment. It does not have to be seen as a humiliating backing-down, but, rather, a humble response to listening.

I will not delay the House further. I will listen to the Minister’s response in due course, but I am minded, at this point, to divide the House. However, I might need some careful direction, should other amendments be passed, as to where that leaves my Amendment 8.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I wish to add a few sentences to what the right reverend Prelate said. I preface that by noting that, when we built the Sentencing Council, the legislation was discussed and agreed. It was clear when this Bill was introduced that discussion and agreement were needed. I find it very disappointing that we have not been able to get together to find a satisfactory way to deal with this legislation other than by dropping it—I regard that now as gone.

I think it important that Ministers appreciate what the right reverend Prelate said. It is plain that pregnancy and maternity are characteristics, and one ought to ensure that all judges receive the same guidance as to obtaining pre-sentence reports. I know that the Minister and the Lord Chancellor are very keen that pregnant women do not go to prison, but they are not the law; the law is laid down by this unfortunate legislation. If there is one thing we can do to ensure that it does not wreak injustice, it is to allow the amendment proposed by the right reverend Prelate. There is a huge amount more that we should do, but, without a consensus and discussion between us, I do not believe that we can make any improvement. That is why I content myself with this very narrow point. We cannot be in a position where we cannot give guidance to courts that they should get a pre-sentence report to avoid sending pregnant women to prison.

[Lord Sandhurst (Con)]

My Lords, I thank all noble Lords who contributed to the Bill’s progress in Committee. In particular, I acknowledge the thoughtful and constructive contributions from the noble and learned Lord, Lord Burnett of Maldon. We have heard further thoughtful contributions today, not least from the noble and learned Lord, Lord Thomas of Cwmgiedd, and the right reverend Prelate the Bishop of Gloucester.

None the less, from this side of the House, I wish to place on record our broad support for the principles that underpin the Bill. The use of pre-sentence reports, when applied rigorously, consistently and with due regard to the individual circumstances of the offender, is an essential part of a fair and effective justice system. They play a crucial role in informing judicial discretion, ensuring proportionality in sentencing and helping to reduce the risk of reoffending through appropriate rehabilitative measures. We welcome the intention of the Bill to strengthen and clarify the expectations around the preparation and consideration of pre-sentence reports. These seek to embed good practice across the system and to promote greater consistency in the court’s approach to sentencing.

However, while we on this side support the direction of travel, we remain mindful that sentencing is a complex and sensitive area of the law. It touches not only on legal principle but on human lives, social outcomes and the effective operation of our prison and probation systems. In that context, I will take a moment to acknowledge a specific concern raised by noble Lords in Committee: the lack of clarity around the term “personal characteristics” as it appears in the Bill. This is not a small point. If the legislation is to provide clear and workable guidance to practitioners, including report writers and the judiciary, we must be precise about what we mean. Any doubt or uncertainty in this area risks inconsistent application. It undermines the very consistency and fairness that the Bill seeks to promote. I hope that the Government will reflect carefully on these concerns and consider whether further definition could be usefully provided.

More broadly, I echo the view expressed at earlier stages that, with just a little more time and careful consideration, we could strengthen and improve this legislation further. There remain questions that would benefit from additional scrutiny, and we should proceed with care. We must get this right, not only in the interest of justice but for the confidence of the public, the judiciary and those working on the front line of our criminal justice system. We on these Benches remain committed to working constructively with the Government, with noble Lords across the House and with all those who bring experience and insight to bear on this important issue.

I will turn briefly to the amendments in the first group. As for Amendments 1 and 7, spoken to by my noble friend Lord Hailsham, we recognise that Amendment 1 seeks to provide clarity about the range of matters that the sentencer may take into account. We invite the Government to consider these during the Bill’s journey through the other place.