Sentencing Guidelines (Pre-sentence Reports) Bill

Shabana Mahmood Excerpts

2nd reading
Tuesday 22nd April 2025 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Shabana Mahmood)]

I beg to move, That the Bill be now read a Second time.

When I spoke in this House on 1 April, I set out the Government’s intention to introduce emergency legislation, because I believe that our justice system must be above all else fair, and that, standing before a judge, we are all equal, no matter the colour of our skin or the question of our faith. Given the existential nature of this matter for our justice system, I was clear that we would move at pace to change the law. The Sentencing Guidelines (Pre-sentence Reports) Bill was introduced that same day. With Second Reading taking place just three weeks later, we are forging ahead with plans to legislate as quickly as possible.

Before I set out the contents of the Bill, it bears repeating how we came to be in the current situation and why expedited legislation is necessary. In the last Parliament, the Sentencing Council put forward revised guidelines on the imposition of community and custodial sentences. I should note that during a statutory consultation they were welcomed by the last Conservative Government in no uncertain terms. The shadow Transport Secretary, the hon. Member for Orpington (Gareth Bacon), who was a Justice Minister at the time, should be able to furnish his colleagues with the details, but as he is absent today, I will do so.

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

Can the right hon. Lady clarify whether the guidelines proposed under the previous Government were the same as those with which she is dealing now, or did they differ—and if they differed, how did they differ?

[Shabana Mahmood]

They did not differ in any substantial way. All the guidelines, in so far as they concern issues relating to race, religion, culture or belief, are exactly the same as those to which the Justice Minister responded under the Conservative Administration. Hiding behind that, I am afraid, shows a failure to reckon with the Opposition’s own track record, which has become quite a hallmark of theirs in recent weeks and months.

These guidelines help judges, when sentencing an offender, to determine whether to impose a community order or a custodial sentence, providing guidance on the thresholds for disposals of this type. In the process of deciding which threshold has been met, judges are required by law to obtain a pre-sentence report, except in circumstances where they consider such a report to be unnecessary. The reports are used to give the courts more context of the offending behaviour in a given case, and set out any factors that should be considered as part of the sentencing process. As I said to the House on 1 April, generally speaking I am in favour of the use of pre-sentence reports, and in fact I have recently freed up capacity in the Probation Service precisely so that it has more time to produce reports of this type.

[Sir John Hayes (South Holland and The Deepings) (Con)]

The chairman of the Sentencing Council has argued that the sentence should be tailored to the offender, but my constituents—and, I suspect, those of the Secretary of State—think that the sentence should be tailored to the offence and its effect on the victim. That is what counts, not the background, circumstances, history or origins of the offender.

[Shabana Mahmood]

The purpose of the pre-sentence reports, used properly, is to provide the court with the full context of the offending behaviour. That enables the court to ensure that when it imposes a custodial sentence it will be successful and capable of being delivered in respect of that offender, or else a community sentence should be imposed instead. It is a useful mechanism that judges have at their disposal. We would expect it to be used in all cases except when the courts consider it unnecessary because they have all the information. Because I consider pre-sentence reports to be so important in giving the courts all the information that they need to pass the right sentence for the offender who is before them, I have specifically freed up capacity in the Probation Service so that it can do more work of this type. However, the updated guidelines specifically encourage judges to request them for some offenders and not others, stipulating circumstances in which a pre-sentence report would “normally be considered necessary”. That is the bit that I am seeking to change.

[Sir Julian Lewis (New Forest East) (Con)]

The right hon. Lady has just said something very important: namely, that she would normally expect a pre-sentence report to be given in all, or at least almost all, cases. I hope that is her position, because what seems unfair to me is that a pre-sentence report, which presumably enables people to present arguments in mitigation, should be available to some people who have been convicted of a crime but not to others. Surely it should be available either to everyone or to no one, because everyone’s individual circumstances deserve the same degree of consideration.

[Shabana Mahmood]

The right hon. Gentleman is absolutely right. In fact, we fully support section 30 of the Sentencing Act 2020—the sentencing code—which makes it clear that a court must obtain a pre-sentence report unless it considers it unnecessary to do so. That would be in cases where judges consider that they already have at their disposal the facts that will enable them to make a determination of the correct sentence for any particular offender. I think that the Sentencing Council got things right in the paragraph of the current guidelines that comes before the one that is the subject of the debate and the Bill, which states:

“PSRs are necessary in all cases that would benefit from an assessment of one or more of the following: the offender’s dangerousness and risk of harm, the nature and causes of the offender’s behaviour, the offender’s personal circumstances and any factors that may be helpful to the court in considering the offender’s suitability for different sentences or requirements.”

That covers all the areas in which we would normally consider PSRs to be necessary, and I would like them to be used more extensively. Indeed, I would like them to be the norm in all cases, because I think they offer important information to people who are passing sentence—unless, of course, it is unnecessary because judges have already been furnished with all the details, having heard the whole of the case that has been taking place before them.

[Sir Jeremy Wright (Kenilworth and Southam) (Con)]

The Lord Chancellor has just given us, very helpfully, the list of matters that might be relevantly considered in a pre-sentence report. As she has said, however, one of the items on that list is “personal circumstances”, and that is what the Bill will remove from the Sentencing Council’s discretion. May I ask her why she has not used in the Bill the language that is included in the explanatory notes? Paragraph 8 states that the Bill will

“prevent differential treatment… It does this by preventing the creation of a presumption regarding whether a pre-sentence report should be obtained based on an offender’s membership of a particular demographic cohort”.

That strikes me as a much narrower exclusion, and perhaps one better targeted at the problem that the Lord Chancellor has, in my view, rightly identified.

[Shabana Mahmood]

The right hon. and learned Gentleman is right. That is why we have offered the additional context in the explanatory notes. Personal characteristics and personal circumstances have, over the years, been elided in different court judgments, and the different definitions of the two have sometimes slipped. I wanted to make it clear in the Bill that we are constraining the Sentencing Council’s ability to create guidance for PSRs in relation to personal characteristics. We refer in the Bill to race, religion, culture and belief, specifically to ensure that the Sentencing Council understands that we are targeting this part of the offending section of the imposition guideline. It will then have its own interpretation of how personal circumstances and personal characteristics should apply. I would expect this to be analogous to protected characteristics in the Equality Act 2010, in terms of the way in which the courts are likely to approach the question of what a personal characteristic is for the purpose of the Bill.

However, I wanted to make the intention behind the Bill very clear to the Sentencing Council, and to everyone else. It is tightly focused on the offending section of the imposition guideline and leaves the wider question of personal circumstances untouched. As I will explain later in my speech, there is helpful Court of Appeal guidance on circumstances and on other occasions on which a PSR should normally be required, and nothing in the Bill will affect the Court of Appeal precedents that have already been set.

[Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)]

Is the Lord Chancellor aware that the Sentencing Council guidelines, and indeed the Bill, turn on issues that some of us have campaigned on for decades? I think that there would be concern if the Bill undermined the independence of the judiciary.

[Shabana Mahmood]

It certainly does not undermine the independence of the judiciary. There is a long tradition of campaigners, including my right hon. Friend, who have a lengthy track record of campaigning on issues relating to disparities within the criminal justice system and, indeed, across wider society. In so far as those disparities relate to the criminal justice system, my strong view is that they are matters of policy.

Parliament is the proper place for that policy to be debated, and Parliament is the proper place for us to agree on what is the best mechanism to deal with those problems. It is not within the purview of the Sentencing Council, because this is a matter of policy. Judges apply the laws that are passed by this House; that is their correct and proper function. I will always uphold their independence in that regard and will never interfere with it, but this turns on a matter of policy. It is right for the Government of the day to seek a policy response to this issue, and it is right for it to be debated and, ultimately, legislated for in the House.

[Jim Shannon (Strangford) (DUP)]

I thank the Lord Chancellor for opening the debate, and for her answers to the questions so far. I think every one of us believes that the foundational principle that justice is blind must be adhered to in every way, but we live in an age of ever-changing political correctness, which, regardless of whether we like it or not, invades Parliament and our lives.

I am very much in favour of what the Lord Chancellor has said about race and faith. As a person of faith, I want to make sure that race and faith can never be mitigating or aggravating factors when it comes to justice. Given the lives that we live, the world that we live in, and all the things that impact on us daily and in this House as MPs, can the Lord Chancellor confirm that faith, justice and religion will always be preserved in the way that they should be?

[Shabana Mahmood]

For me, one of the most moving parts of the parliamentary day is when the day starts with prayers. Those are Christian prayers, and I am of the Muslim faith, but I always find it moving to be part of them and to hear them. They remind us that we all belong to a country with a long heritage, which is steeped in faith. The source code for much of the law of England and Wales is the Bible. The hon. Gentleman makes some broader points on the issue of faith and how important it is, and I suspect that he and I have a lot in common in that regard. There must never be differential treatment before the law of our land, and before any court, on the basis of faith.

[Mr Jonathan Brash (Hartlepool) (Lab)]

I welcome the Lord Chancellor’s point about parliamentary sovereignty and that fact that policy must be determined by this place. I think many Members from across the House will have been quite shocked by the response of the Sentencing Council to her letter when she asked it to consider the guidelines again. Does she agree that if this place continues to butt heads with the Sentencing Council over guidelines like these, maybe the best thing to do is abolish the Sentencing Council?

[Shabana Mahmood]

I have had constructive conversations with the Sentencing Council, and I have made it very clear that I do not really do personal. I certainly would not do it in relation to the judiciary, whose independence I uphold and whose security I am ultimately responsible for. I take those responsibilities very seriously. I swore an oath on my holy book, and that means a huge amount to me. There is a clear difference here about where the line is drawn between matters of policy and matters that are correctly within the purview of the judiciary, which is how the law should be applied in the cases that they hear. I am simply making it very clear that this is policy and is for this place to determine, but as I will come to later in my speech, this situation has highlighted that there is potentially a democratic deficit here. That is why I am reviewing the wider roles and powers of the Sentencing Council, and will legislate in upcoming legislation if necessary. I will now make more progress with my speech and give way to other colleagues later if people wish to intervene again.

The updated guidelines specifically encouraged judges to request pre-sentence reports for some offenders and not for others, stipulating the circumstances in which a pre-sentence report would “normally be considered necessary”. This included cases involving offenders from ethnic, cultural or faith minorities. In other words, a pre-sentence report would normally be considered necessary for a black offender or a Muslim one, but not necessarily if an offender is Christian or white, and we must be clear about what that means. By singling out one group over another, all may be equal but some are more equal than others. We must also be honest about the impact that this could have. Equipped with more information about one offender than another, the court may be less likely to send that offender to prison. I therefore consider the guidance to be a clear example of differential treatment. As such, it risks undermining public confidence in a justice system that is built on the idea of equality before the law.

[Sir Ashley Fox (Bridgwater) (Con)]

Given that the Sentencing Council refused the Lord Chancellor’s first invitation to rewrite its guidance, is she confident that the limited nature of this Bill is sufficient? Would she not be wiser to take a broader power to ensure that in future all sentencing guidance has an affirmative vote in this place?

[Shabana Mahmood]

It is right that, moving at pace, I have sought to have a targeted Bill that deals with this particular imposition guideline. I have made it very clear that I am conducting a wider review of the role and powers of the Sentencing Council. If we need to legislate further—maybe in the way that the hon. Gentleman suggests, although other mechanisms are also potentially available—I will do so. I am not ruling out further legislation—in fact, it is very much on the table—but it is right that we are moving quickly in order to deal with the problems that could be caused by the guidelines coming into force, and that I have taken targeted action in this short but focused Bill.

As I told the House a few weeks ago, I had several discussions with the Sentencing Council in the time leading up to 1 April, when the updated guidelines were due to come into force. I reiterate my gratitude to the council’s chair, Lord Justice William Davis, for engaging with me on this issue and for ultimately making the right call by pausing the guidelines while Parliament has its say. I should say again that I have no doubt whatsoever about the noble intentions behind the proposed changes, because I understand the problem that the Sentencing Council was attempting to address. Racial inequalities exist in our justice system and are evident in the sentencing disparities between offenders from different backgrounds, but as the Sentencing Council acknowledges, the reasons for this are unclear. Addressing inequalities in the justice system is something that this Government take very seriously, and we are determined to increase confidence in its outcomes, which is why we are working with the judiciary to make the system more representative of the public it serves.

I have also commissioned a review of the data that my Department holds on disparities in the justice system in order to better understand the drivers of the problem, but although I agree with the Sentencing Council’s diagnosis, I believe it has prescribed the wrong cure. Going ahead with the new guidelines would have been an extraordinary step to take. It would have been extraordinary because of what it puts at risk: the very foundations of our justice system, which was built on equality before the law. The unintended consequences would have been considerable, because the idea that we improve things for people in this country who look like me by telling the public that we will be given favourable treatment is not just wrong, but dangerous. We are all safer in this country when everyone knows we are treated the same. If we sacrifice that, even in pursuit of a noble ideal such as equality, we risk bringing the whole edifice crashing to the ground.

I know there are disagreements in this House with regard to the correct policy to pursue, not least between the shadow Secretary of State for Justice, who opposes the guidelines, and the shadow Transport Secretary, whose support for them I have noted already—though I suppose that does assume that the shadow Secretary of State for Justice really is who he shows himself to be today. I must admit that I have begun to question whether his principles are set or really of no fixed abode. After all, he did pose as a Cameroon centrist for so many years, and only recently became his party’s populist flag bearer. It is enough to make me wonder whether he is, in fact, a Marxist—but one of the Groucho variety. “These are my principles,” he says, and if you do not like them, he has others.

Regardless of our positions on this question of policy, one thing is clear: this is a question of policy. How the state addresses an issue that is systemic, complex and of unclear origin is a question of what the law should be, not how the law should be applied. Let me be clear about that distinction: Parliament sets the laws and the judiciary determine how they are applied, and they must be defended as they do so. I will always defend judicial independence, and as I said earlier, I swore an oath to do so when I became the Lord Chancellor. Given the shadow Lord Chancellor’s recent diatribes, including just hours ago in this place, he may want to acquaint himself with that oath, if he intends ever succeeding me in this position, although I am assuming that it is my job he wants, not that of the Leader of the Opposition.

[James Wild (North West Norfolk) (Con)]

I think the Lord Chancellor just said that the approach to the guidelines taken by the Sentencing Council puts the foundation of the justice system at risk. Given that, how can she have confidence in a Sentencing Council that takes such an approach?

[Shabana Mahmood]

I have engaged constructively with the Sentencing Council and will continue to do so, and I am in the process of legislating to prevent this imposition guideline from ever coming into force. It has currently been paused, and I think that was the right step for the Sentencing Council to take. I am conducting a wider review of the roles and powers of the Sentencing Council, and it is right that I take a bit more time to think carefully about that, about what we may or may not want it to do, and about how we may right the democratic deficit that has been uncovered. I think my approach to the Sentencing Council is very clear from the action I am taking.

[Sir Julian Lewis]

I do not think anyone is questioning the firm action the Lord Chancellor is taking. The point my hon. Friend the Member for North West Norfolk (James Wild) made is: why should it be necessary for her to take that action? Surely, if the Sentencing Council cannot see the distinction she makes between its proper role and Parliament’s proper role, it is not fit to do the job.

[Shabana Mahmood]

The Sentencing Council might argue, rightly, that given the guideline was welcomed by the former Government, it probably thought it was on safer ground than I consider it to be. However, there is clearly a confusion, a change in practice, or a development in ways I disagree with about the proper line between what is practice or the application of the law and what is properly in the realm of policy. That is what I am absolutely not going to give any ground on and that I will be setting right.

[Sir John Hayes]

The right hon. Lady is right about the moving process or trend that she has described, but the trouble is that it is part of a bigger problem, is it not? It is the problem of judicial activism, and it is not new. For some time, judicial activists have sought to do exactly what she has said, and it is they, not people in this House, who endanger the separation of powers.

[Shabana Mahmood]

However, it is always up to the people in this House, if they feel that a law is being applied in ways that were not intended, to put that law right. I am afraid the right hon. Member’s comment is a rather damning indictment of 14 years of Conservative Government, with 14 years of sitting back and allowing other people to do the policy work that Ministers in the previous Government perhaps did not have the time or inclination to do themselves.

I do not think that judges, in applying the law, are doing anything wrong; they are doing their job. They are public servants, and they do their job independently. It is right that we have an independent judiciary in this country. We are very lucky to have a judiciary that is world class and highly regarded. One of the reasons why so many businesses from all over the world want to do business in this country is that they know they can trust our courts system and the independence of our judges. I think it is incumbent on the whole of this House to defend the independence of the judiciary, because that independence was hard won. It is one of our absolute USPs as a rule of law jurisdiction in this country, and none of us must ever do anything that puts it at risk.

If there are issues about the way in which the law is applied—if Parliament or Ministers ever consider that it has strayed too far from the original intention—we can always legislate, and I am doing just that today. I hope this is an example that others, if they have issues in their areas, may consider taking as well. It is a question of policy, and that should be decided and debated here in this place, in this House, and the public must be able to hold us to account for the decisions we take, rewarding or punishing us at the ballot box as they see fit. This is the domain of government, politics and Parliament, and today we reassert our ability to determine this country’s policy on the issue of equality of treatment before the law.

[Dr Caroline Johnson]

The right hon. Lady is making a point about the wider justice system and the importance of equality before the law. What has she done to assure herself and the House that, in all aspects of her Department’s work, people are being treated equally under the law—whether in relation to parole, how they are treated in prison, bail conditions and so on?

[Shabana Mahmood]

I have ordered a wider review of all guidance across all the MOJ’s work in so far as it relates to equality before the law to make sure that the problems we have uncovered here are not replicated elsewhere. There is the issue of bail guidance, which was discussed in the House earlier. I have already ordered a review, and that guidance is being redrafted as we speak. That particular guidance has been something like 20 years in the making—it has been added to over many years—so the redraft has to be careful and we must make sure it does not have any unintended consequences. However, we are cracking on with that work at pace, and I will make sure that, by the time I am done, we can all be absolutely clear that this sweep towards allowing potential differential treatment is sorted out once and for all.

[Dr Johnson]

rose—

[Shabana Mahmood]

If the hon. Lady will forgive me, I will make more progress. I think I have been more than generous.

That brings me to the Bill before us today. While the updated Sentencing Council guidelines are currently paused, if we do not act they will come into force— [Interruption.] Well, there was a lot to say, gentlemen, about the previous Government’s track record and it needed to be said. And I do not think the hon. Member for Kingswinford and South Staffordshire (Mike Wood) should mind me taking interventions from people on his own side. That is a novel approach for the shadow Front Bench.

Let me turn to the specifics of the Bill. It is tightly focused, containing just two clauses. Clause 1 amends section 120 of the Coroners and Justice Act 2009, which brought the Sentencing Council into existence. It dictates that the guidelines the council produces may not include references to personal characteristics, including race, religion or belief, or cultural background. Clause 2 relates to how the Bill will be enacted: that it will apply only to England and Wales, and that its measures will come into force on the day after it passes.

It is also important to be clear about what the Bill does not do. It does not stop the Sentencing Council from issuing broader guidance concerning requests for pre-sentence reports in those cases where it is helpful for the court to understand more about an offender’s history and personal circumstances. The Bill does not interfere with the courts’ duties to obtain a pre-sentence report in appropriate cases, for example those involving primary carers and victims of domestic abuse. And, as detailed in the Bill’s explanatory notes, it does not change existing precedent where the courts have determined that pre-sentence reports are necessary or desirable, in cases such as: Thompson, where the Court of Appeal recently emphasised their importance in sentencing pregnant women or women who have recently given birth; Meanley, in which the court referenced the value of pre-sentence reports for young defendants; or Kurmekaj, where the defendant had a traumatic upbringing, vulnerability, and was a victim of modern slavery. Instead, the Bill narrowly focuses on the issue at hand, putting beyond doubt a principle which finds its ancient origins in Magna Carta and has developed over the centuries to serve the interests of justice not just here but in jurisdictions around the world: that each of us, no matter who we are, where we come from or what we believe, stand equal before the law of the land.

Wider questions remain about the role and the powers of the Sentencing Council, as I have noted. The council does important work, bringing consistency to judicial decision making, but it is clear in this instance that it went beyond its original remit. It sought to set policy, which stood out of step with the Government of the day. Therefore, it raises the question: who should set sentencing policy? Today’s legislation only addresses this question in the narrowest terms, considering the guidance on pre-sentence reports. It does not give us a definitive resolution as to whether it is Government Ministers or members of the Sentencing Council who should decide policy in the future. As I noted, that leaves us with a democratic deficit.

As I told the House on 1 April, the question of the role and powers of the Sentencing Council must therefore be considered further. That work is already under way in my Department. Should a further change be required, the Government will include it in upcoming legislation. The Sentencing Council plays an important role in our justice system, and any changes to it must be made carefully and with the consideration it deserves. I am sure they will be discussed more in this House in the months ahead, and I welcome the opportunity to debate them.

The Bill we are debating today is small, but the issues it contains could not be of greater significance. I know the majority of right hon. and hon. Members in this House would agree that the Sentencing Council’s intentions on this issue were noble, but in trying to reach for equality of outcome, they sacrificed too much, undermining the sacred principle of equality before the law. It is right that we, as policymakers, stop the updated guidelines from coming into force. We must stand up for the idea that no matter our race or religion, no person should receive preferential treatment as they stand in the dock before a judge, so I beg to move that the Bill now be read a second time.

[Madam Deputy Speaker (Caroline Nokes)]

I call the shadow Lord Chancellor.