My Lords, I want to extend my thanks to the many noble Lords who have already contributed to debates in this House on this matter, which have provided me and the Government with valuable food for thought. I am also grateful to the noble Lords with whom I have spoken about this Bill, who have shared their wise counsel and wealth of experience regarding the matters on which it touches.
I know that all noble Lords will be looking forward to my noble friend Lady Nichols’ maiden speech. I welcome her to this place, and I know we will all benefit from her vast experience in public service.
I will start by recapping how we got here, as I believe that it is important to understand the Government’s intention behind the Bill. The Sentencing Council’s imposition of community and custodial sentences guideline helps judges, when sentencing an offender, to determine whether to impose a community order or a custodial sentence. In deciding which threshold has been met, judges are required by law to obtain a pre-sentence report, except in circumstances where the court considers such a report to be unnecessary. Pre-sentence reports are used to give the courts more context for the offending behaviour in a given case to aid judges and magistrates in making informed sentencing decisions. The current imposition guideline makes it clear that pre-sentence reports offer valuable assistance to the court when it decides whether to impose a community or custodial sentence.
Under the last Government, the Sentencing Council consulted on a revised imposition guideline. This guideline was due to come into effect on 1 April this year and includes additional guidance on when courts should request pre-sentence reports. It noted that pre-sentence reports will “normally be considered necessary” for certain offenders, including those from an ethnic, cultural or faith minority. In effect, this could have led to offenders receiving differential treatment in terms of access to pre-sentence reports based on their faith or the colour of their skin. These changes were welcomed by the previous Administration.
By contrast, both the Lord Chancellor and I have been clear that that would be unacceptable—not least for the victims, who put their trust in the criminal justice system. Singling out one group over another undermines the idea that we all stand equal before the law, a principle that has been at the forefront of our justice system and our society for centuries. This is the position that the Lord Chancellor communicated in person and in writing to the Sentencing Council. The Lord Chancellor first used her existing power, meeting the Sentencing Council’s chair on 13 March to ask it to reconsider its approach. Unfortunately, the council declined to amend the guidelines significantly or re-consult on its approach. While the Sentencing Council remains of a different opinion from the Government, I am grateful to its chair, Lord Justice Davis, for the engagement he has had with the Lord Chancellor and for the cordial conversations that I know we will continue to have.
My Lords, it is a pleasure to have the opportunity to contribute to this important debate. I welcome the Minister to his place and look forward very much to the maiden speech of the noble Baroness, Lady Nichols of Selby. I broadly welcome this legislation while regretting its necessity and that we have reached such an unsatisfactory juncture. I am indebted to Policy Exchange for its excellent paper on this issue, Two-Tier Justice.
The impasse between the Lord Chancellor and the Sentencing Council was significant in its problematic challenge to parliamentary sovereignty, its undermining of the faith and trust that the public must have in the judicial system, and the concept of equal treatment under the law. It further undermined the long-established and quite proper constitutional convention of judicial independence and the separation of powers between the judiciary, legislature and the Executive.
The imbroglio arose from the consultation process on the sentencing guidelines, which was over two years in duration and culminated in January this year. The Sentencing Council’s wilful refusal, enunciated in its letter to the Lord Chancellor on 27 March, to amend its proposed guidelines demonstrated an obtuse disregard for democratic proprieties and quite legitimate criticisms of its actions in formalising two-tier sentencing and differential treatment by the courts based on membership of ethnic, faith and cultural minorities. This is at a time when the public are acutely aware and particularly mindful of fairness and appropriateness, or otherwise, in a number of high-profile criminal cases as reported in the media. This issue transcends party-political differences. It is about whether an elected Parliament and Government Ministers who are accountable to the electorate should be pre-eminent in setting policy in judicial and relevant related matters.
My Lords, I start by saying how sorry I was to hear of the death of the noble and learned Lord—who I just think of as Terry—Lord Etherton. His words were always wise, measured and compassionate, and we will miss him. More positively, we look forward to the maiden speech of the noble Baroness, Lady Nichols.
This one-clause Bill provokes such strong feelings, particularly when there is much we can agree on, but our approach from the Liberal Democrat Benches differs a good deal from that of the noble Lord, Lord Jackson. This must be one of those situations where one really does not want to start from here, not only because I would like to rewind, but because we are expecting very soon the review of sentencing by David Gauke. That should be the basis for a debate about sentencing because the debate needs to be wider than this Bill.
We are very concerned about fast-tracking this legislation, which we do not see as necessary or desirable. That is a constitutional point. I am a member of the Constitution Committee. I think the only members who are able to talk today are my noble friend Lord Beith and I. That committee takes the view that fast-tracking is not necessary and says so in a report to the House that was agreed at about noon today and published at about the point that we started this debate. Obviously, the Minister is not going to be able to respond to it today, but I urge that the MoJ responds to the points made by the committee well before Committee stage so that it is properly before the House and considered.
Pre-sentence reports are important and ideally should be for everyone—unless, of course, the court considers that they are not necessary—but the Probation Service is very overstretched. The Lord Chancellor said she was clearing the way to free up capacity in the Probation Service, so we will be interested to know the details of at what cost that might be to the service’s other work. That in itself deserves debate.
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.
My Lords, I declare my interest as Anglican Bishop for prisons. I am grateful to be speaking in this Second Reading debate. I too greatly look forward to the maiden speech of the noble Baroness, Lady Nichols. Having said that, I do not believe this is a debate we should be having at all. I do not believe this rather theatrical legislation is necessary.
In a world of sufficient resources, as has already been said, there would be comprehensive pre-sentence reports for everyone, to which careful attention would be paid in court. If we have to prioritise PSRs, then it makes sense to prioritise those we know are especially vulnerable, or where there is evidence of disproportionate outcomes from the justice system. Will the Minister comment on why he thinks there was such shock at this apparent two-tier justice with regard to ethnicity but not the other cohorts in the guidance, such as young adults and pregnant women? Do the Government believe the issues raised in the landmark report by the current Foreign Secretary almost eight years ago are now a thing of the past? Is there no role for judges in mitigating the issues raised in that report?
The use of the Sentencing Council guidelines apparently to feed a culture war is distressing. The allegation of two-tier sentencing based around race, religion, belief or cultural background is damaging to public understanding. This is already shaped heavily by media headlines and the shocking and extreme cases of violent crimes, which are not the norm. Public understanding of why and how criminal sentences are handed down is severely lacking, as evidenced by the Justice Select Committee in 2023 and a recent Prison Reform Trust report detailing a citizen jury exercise. My own experience of talking to teenagers in schools is that more information about sentencing results in more considered responses and a greater sense of engagement with what we are trying to achieve, which surely goes beyond mere punishment.
My Lords, it is a profound honour to rise before noble Lords today and make my maiden speech in this esteemed Chamber. I am deeply grateful to my sponsors, my noble friends Lady Anderson and Lady Winterton, and to Black Rod and all the House staff, who have been so welcoming since my introduction—particularly the doorkeepers. I am grateful also to my noble friend the Leader, Lady Smith, and the Chief Whip, my noble friend Lord Kennedy, for their personal support since my peerage was announced. To be asked to join your Lordships’ House is a privilege I do not take lightly, and I intend to serve with the same dedication that has guided me throughout my life.
My journey to this moment has been shaped by my roots in Selby in North Yorkshire, a place that has defined who I am and the values I hold dear. It is a town built on industry, hard work and community, a place where people look out for one another and where solidarity is not just a word but a way of life. My connection to Selby runs deep. My father was born there, although his life was not always kind to him. His mother died from tuberculosis when he was six years old, and she was laid to rest in a pauper’s grave in Selby Cemetery —a stark reminder of the struggle so many families faced. My mother, one of 10 children from Spennymoor in County Durham, also knew hardship. Her father, a miner, lost his sight in a pit accident. Yet, even through adversity, my parents found strength, love and purpose. They met during the Second World War: my father was stationed at Burghfield Common and my mother was evacuated nearby. They married, settled in Selby and raised a family in a council house on one of the largest estates in the town. Their values, community resilience and public service shaped my path in life.
It was there that I attended Selby Abbey primary school, following in my family’s footsteps. I recently visited the year six group, who wanted to know about the House of Lords. My early years were filled with memories of the shipyard—yes, a shipyard—on the banks of the River Ouse, and the sight of workers leaving on bicycles as the buzzer sounded, a scene that spoke of industry and pride. But perhaps my most memorable early experience was the time when my mother, after a long walk into town, returned home only for my father to ask, “Where’s Wendy?” To her horror, she had left me outside Woolworths in my pram. Thankfully, I was still there, blissfully unaware that I had been momentarily misplaced.
My Lords, it is an honour as well as a pleasure to be the first to congratulate my noble friend on her outstanding and, if I may say so, very moving maiden speech. She brings to this House deep experience and wisdom. She and her loving family have met challenges and setbacks that many in this House will not have experienced. She has faced adversity and knows as well as anyone what it is like to be brought up, to work and to live in a world where people do not always enjoy the good things that many of us in this House take, and have always taken, for granted.
It was clear in her speech that she understands deeply how people experience life. Her brilliant reputation, from her union work with NUPE and then with UNISON, shows that absolutely clearly. There will be many in Selby and beyond who owe a huge amount to her hard work and commitment. She told us in her speech that her values are community, resilience and public service. Whether in working for her constituents when she was a councillor, working for North Yorkshire Council for many years, her work for UNISON and her fellow workers, or performing her important and invaluable—I mean invaluable; many on this side will know exactly what I am saying—political work, she has truly lived up to her values. All of us who have had the honour of listening to her speech today look forward to hearing her many times in this House.
On the debate, I should declare some interests: first as chair of the Leicester Community Advice and Law Centre; secondly, as joint chair of the All-Party Group on Access to Justice; and, thirdly, as a member of this House’s Justice and Home Affairs Committee. Before making the few points that I intend to make, I want to stress—and I think it needs to be stressed—how the Ministry of Justice under this Government already has a record to be proud of. It is not only in the quality of its Ministers, particularly in this House, but in what, against crushing obstacles, it has already achieved, given the ridiculous, unsatisfactory budget it has to work with.
My Lords, I too begin by paying tribute, briefly, to the noble and learned Lord, Lord Etherton. He was a mentor and, for 25 years, along with his husband, Andrew, a close friend. I benefited from his counsel and friendship for many years, and I will miss him dearly, as I am sure many will in this House.
My spirits were, however, raised by the speech of the noble Baroness, Lady Nichols of Selby. Her words were warm, moving, inspiring and thoughtful, so I am sure she will make a great contribution to this place.
Many of the points I wanted to make about the Bill have been made very eloquently by the noble and learned Lord, Lord Thomas, and now by the noble Lord, Lord Bach. I should say that, unlike the noble Lord, Lord Bach, criminal law and criminal procedure is not within my field of academic expertise or practice at the Bar; the concerns I have about the Bill are of a more general nature.
I understand and respect the political considerations behind the Bill, but as with other brief and seemingly straightforward pieces of legislation, it lacks the necessary clarity. The main problem is, as we heard before, the concept of personal characteristics. The prohibition is by reference to this concept. The Bill does not contain a definition of personal characteristics but provides a non-exhaustive list. It leaves open the question of what other characteristics might count as personal characteristics under the Bill.
At paragraph 14 of the Explanatory Notes, the effect of the two key subsections of the Bill is described as follows:
“Sentencing Guidelines cannot be issued to state that it should generally be necessary to obtain a pre-sentence report based on an offender’s membership of a particular demographic cohort, rather than the particular circumstances of that individual”.
The Explanatory Notes thus suggest that the concept of personal characteristics is related to membership of demographic cohorts. The Sentencing Council’s draft guidelines on the imposition of community and custodial sentences, which prompted the adoption of the Bill, said that a pre-sentence report would be necessary if the offender belonged to one or more cohorts. The guidelines did not describe the cohorts as demographic, because they included characteristics that would not generally be understood as being demographic.
5:02 pm
20 of 42 shown
I am very thankful that, following its engagement, the Sentencing Council has paused implementation of the revised imposition guideline while Parliament has its say. I am also grateful to noble Lords who have shared their expertise in this area with me. It is clear that the intention behind the Sentencing Council’s changes to the guidelines was an honourable one: to address the inequalities in our justice system. The issue of disparities in the criminal justice system is a serious matter, and one which this Government are determined to address.
However, this is a question of policy, one which must be addressed by government, accountable to the public and Parliament, and via the ballot box. As noble Lords will be aware, this issue has prompted debate here, in the other place and publicly on the correct roles and responsibilities of the Sentencing Council, and the Lord Chancellor is carefully reviewing and considering all options. I am sure that that will be discussed more in your Lordships’ House in the months ahead.
However, I want to be clear that this is beyond the scope of the narrow Bill at hand today. The Sentencing Council, although only 15 years old, holds an important position within the justice system, and any changes to its function and powers must be considered carefully. I know that several noble and learned Lords have had roles on the Sentencing Council and its predecessor and will have valuable views to add as this is considered. It would not have been right to address this through this targeted and narrow legislation.
I am proud of our judiciary, and I know that they are the envy of the world: rightly respected for their independence, impartiality and fairness. I know that the Lord Chancellor takes her oath to defend the independence of the judiciary very seriously. I reassure noble Lords that nothing we are considering in terms of the future of the Sentencing Council will change the Government’s clear commitment to defend the rule of law.
I turn now to what the Bill does. Clause 1 amends Section 120 of the Coroners and Justice Act 2009. It provides that sentencing guidelines about pre-sentence reports may not include provision framed by reference to offenders’ different personal characteristics, including race, religion, belief or cultural background. This would mean that any existing guidelines on pre-sentence reports which are framed by singling out personal characteristics would cease to have effect.
The Sentencing Council will therefore not be able to make such provision in future guidelines. The changes made by this clause therefore prevent the Sentencing Council making policy about when pre-sentence reports should be obtained. That would risk differential treatment before the law and would undermine public confidence in the criminal justice system.
In bringing forward the Bill, the Government’s objective is to help ensure equality before the law, so that offenders are treated according to their individual circumstances and not by virtue of their membership of a particular group. We have therefore used the term “personal characteristics” in the Bill to ensure that sentencing guidelines about pre-sentence reports cannot include provision framed by reference to any specific personal characteristic of an offender, and we have accompanied this by listing some characteristics in the Bill, including race, religion or belief, or cultural background.
However, this is a non-exhaustive list, intended to give context to the term. The Government intend that the Bill will also apply to a wider range of characteristics including sex, gender identity, physical disabilities and pregnancy. We have also used the term “demographic cohort” in the Bill’s Explanatory Notes, to help provide additional context to the meaning of “personal characteristics”.
I will now make clear what the Bill does not do. It 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. The Bill does not interfere with the courts’ ability to request a pre-sentence report. The Sentencing Code is clear that courts must obtain pre-sentence reports unless they consider it to be unnecessary. The Bill does not affect this presumption. The independent judiciary will retain discretion to make decisions about where pre-sentence reports are necessary based on the facts of the case. The Bill does not stop the Sentencing Council advising, in general terms, that pre-sentence reports should be sought in cases where the court would benefit from an assessment of an offender’s personal circumstances.
Also, as detailed in the Explanatory Notes, the Bill does not change existing precedent where the courts have determined that pre-sentence reports are necessary or desirable. Recently, in R v Thompson, the Court of Appeal emphasised their importance in sentencing pregnant women or women who have recently given birth. In R v Meanley, the court referenced the value of pre-sentence reports for young defendants. In R v Kurmekaj, the defendant had a traumatic upbringing and vulnerability, and was a victim of modern slavery. The court considered that these factors meant that a pre-sentence report should have been requested. Instead, the Bill narrowly focuses on the issue at hand.
I welcome the use of pre-sentence reports, which are a valuable tool for sentencers in appropriate cases. The number of pre-sentence reports declined by 44% between 2013 and 2023. The Probation Service is under a huge amount of pressure, which is indicative of wider capacity issues in the system. This Government have acted quickly to create capacity within the Probation Service to ensure that our hard-working probation officers have more time for vital work such as this. We have announced plans to recruit a further 1,000 probation officers in the coming year, on top of the 1,300 extra probation officers recruited in the last financial year. I am continuing to work with the Probation Service to ensure that it can deliver a high and consistent standard of service.
We are also working to better understand what drives disparities in the criminal justice system. The Sentencing Council has acknowledged that the causes of disparities in sentencing outcomes are “unclear”. Understanding the data is the key first step to deciding what we must do to address these disparities. The Lord Chancellor set out during the Bill’s Second Reading in the other place that she has commissioned a review of the data held by the Ministry of Justice on disparities in the justice system. On the timeline for the review, noble Lords can rest assured that we are working at pace on this and will update the House in due course. I assure your Lordships that this is an issue which the Government take incredibly seriously and are determined to address. However, this cannot be done at the expense of equality before the law.
In conclusion, by preventing the Sentencing Council making guidelines on pre-sentence reports with reference to personal characteristics, this Bill ensures that we all continue to stand equal before the law. I urge noble Lords to support the Bill and the principle that drives it—of equality before the law. I beg to move.
It is appropriate to make the point that pre-sentence reports are a vital tool for magistrates and judges, not least in securing a more comprehensive assessment of an offender and balancing the decision to impose a non-custodial sentence or a term of imprisonment. The previous 2017 imposition guidelines quite rightly made no reference to different cohorts that should receive a pre-sentence report. The new guidelines reference gender, ethnicity, pregnancy, transgender status, and addiction issues, as well as domestic abuse, modern slavery, grooming and other exploitation issues.
The automatic granting of a pre-sentence report to some groups but the availability of only discretionary powers to others was and is wrong. These proposals were divisive, racist and corrosive towards community cohesion. Essentially, if you are a white man who is not religious, you are, or were, under a material and substantive disadvantage in the proposed sentencing regime. The Lord Chancellor was right to highlight this in her letter to the chairman of the Sentencing Council, Lord Justice William Davis, on 6 March.
The fundamental question is: why were these new rules proposed, and on what evidential basis? The Sentencing Council’s 2023 Review of Trend Analysis of the Sentencing Council’s Imposition of Community and Custodial Sentences Guideline found that
“for those groups with larger volumes of offenders sentenced, there is predominantly no clear evidence of differential impacts of the Imposition guideline”.
The noble Baroness, Lady Falkner of Margravine, chair of the Equality and Human Rights Commission, was surely right to state:
“The correct constitutional position would be ... that a judge already has tools at their disposal to seek pre-sentencing reports and that they … do so based on an individual case on a case-by-case basis, rather than categorising certain groups”.
Indeed, we have existing primary legislation in place to allow judges to discharge their duties quite properly, with appropriate evidential discretion, via the Sentencing Act 2020.
The Sentencing Council consultation was flawed and inappropriate, dominated as it was by liberal, self-serving and partisan groups that disregarded the wider societal need for a criminal justice system which is fair, impartial, open and transparent. For the avoidance of doubt, it is not for a judge, however eminent, to unilaterally determine sentencing policy, especially when the Lord Chancellor objects. Parliament has never legislated for it, and it is clear that it is for the judiciary to interpret and apply the law and not to formulate policy on an ad hoc basis. It is for Parliament to set overarching sentencing policy and criminal justice policy while remaining aloof from sentencing of individual offenders by trial judges and magistrates—that also goes for the appellate courts.
So Lord Justice Davis’s rationale in interpreting the role of the Sentencing Council was erroneous. In his letter to the Secretary of State for Justice, Lord Justice Davis referred to the consultation process, stating:
“It was decided that to remove the list would have been contrary to the majority view expressed by consultees”.
That “majority view” among the consultees, that there should be a specified list of groups that automatically receive a pre-sentence report, is unsurprising. The consultation process received 150 responses, 40 of which came from charity or non-governmental organisations. They have every right, and perhaps a duty—organisations such as the Prison Reform Trust, Clinks, the Centre for Women’s Justice and the Howard League for Penal Reform are perfectly entitled—to put forward their views but the Sentencing Council should perhaps have had a more balanced view rather than looking just at the majority of opinion in this particularly niche and narrow consultation.
I think the role of the Government, Ministers and Parliament was misunderstood by the eminent Lord Justice Davis. He questioned whether it was in the power of the Minister to amend Section 1 of the Coroners and Justice Act 2009 in respect of proposing to the Sentencing Council that a sentencing guideline be prepared or revised by the council, and whether it was appropriate in this case. Although the legal advice that Lord Justice Davis intends to obtain has not, as I understand, been published, it seems on an ordinary reading of the legislation, given that the words of the statute are plain and unequivocal, to be a novel approach if the Lord Chancellor is not permitted to propose a revision of the guideline.
Lord Justice Davis also claims that the inclusion of specific cohorts in the imposition guideline is not
“a policy decision of any significance”,
but that is not the case. Even someone as distinguished as Lord Justice Davis must understand that he cannot unilaterally determine, in opposition to the Lord Chancellor, a policy that the Government are obliged to follow. He also says in his letter, rather oddly:
“All judges and magistrates are required to apply any relevant guideline unless the interests of justice require otherwise. In practice, the guidelines form the backbone of every sentencing decision made throughout England and Wales. There is general acceptance of the guidelines by the judiciary because they emanate from an independent body on which”—
this is an important bit—
“judicial members are in the majority. The Council preserves the critical constitutional position of the independent judiciary in relation to sentencing”.
He goes on to say:
“In criminal proceedings where the offender is the subject of prosecution by the state, the state should not determine the sentence imposed on an individual offender. If sentencing guidelines of whatever kind were to be dictated in any way by Ministers of the Crown, this principle would be breached”.
I believe that Lord Justice Davis is mistaken for the following reasons. First, the critical constitutional position of the independent judiciary relates to the sentencing of individual offenders, not the overarching policy. Secondly, Lord Justice Davis implies that the judiciary accept, and presumably follow, sentencing guidelines only
“because they emanate from an independent body on which judicial members are in the majority”,
and I believe that is wrong. Thirdly, the letter from the Lord Chancellor that Lord Justice Davis was replying to does not state or even suggest that Ministers should play any role in the sentences imposed on individual offenders. To suggest otherwise, as Lord Justice Davis does, is disingenuous, I suggest. Fourthly, and lastly, the sense that courts are not part of the state is not only wrong by any ordinary understanding of what the state consists of but is explicitly contradicted by the Courts and Tribunals Judiciary’s own website, which states:
“The justice system is one of the three branches of the state. The other two branches are the executive, or the government, and the legislature, which is the two Houses of Parliament”.
Presumably, when Lord Justice Davis refers to the state, he means the Executive.
It is right that the Government have taken swift action to legislate, but the Minister should also explain and look to the workings of his department, given that in the 12 months to January 2025, senior officials from the Ministry of Justice attended meetings of the Sentencing Council when these proposals were put forward, and yet they did not alert Ministers to the fact that the proposed guidelines would be completely unacceptable to both Conservative and Labour Government Ministers.
It is right that we open up and more closely examine the workings and membership of the Sentencing Council and that it is subject to proper scrutiny; for instance, with confirmation hearings in Parliament. We must make sure that something like this does not happen again. Guidelines for the future should be required to be confirmed by orders in Parliament before coming into effect. Finally, it is right that parliamentary sovereignty has been exerted in this case, while judicial independence remains protected. The Bill is a vital and timely intervention, and for that reason I am pleased on this occasion to support it.
The Justice and Home Affairs Committee of this House, in a report Cutting Crime:Better Community Sentences, spent a little time on pre-sentence reports. I was chairing the committee at the time. The Minister was very welcoming of the report when we debated it. I recall he said that he had read it three times. I suspect his workload is such that he does not manage that for many reports, but we appreciated that. We referred to pre-sentence reports and their purpose, which we described as
“providing an expert assessment of the nature and causes of the offender’s behaviour, the risk they pose and to whom”,
and so on.
Witnesses to our committee raised concerns about the quality of reports, in part because of the pressures on the service, meaning that sentencers—we took the view—do not have the confidence in them that they should have. If a report falls short, the sentencer might not be able to consider an offender as an individual. We heard of PSRs based on what was happening in offenders’ lives eight or nine months previously and not taking into account steps they had taken in that period. We were told in evidence of the view that they were a “tick-box exercise” and not being done in a “meaningful, person-centred way”.
Sentencers may include mental health treatment requirements and alcohol treatment requirements, both of which require the consent of the offender, and drug rehabilitation requirements, which require suitability conditions met by probation making a recommendation to the court. For a sentence to be rehabilitative—one of the objectives of sentencing—it is obvious that the PSR process needs time and the offender to be engaged. The committee said that PSRs
“are an essential part of the sentencing process. They allow courts to tailor sentences to individual circumstances and give sentencers confidence that specific requirements are suitable and available”—
that is another matter—“in their area”. The Government agreed. I stress “individual” because one has surely to consider the whole person, and how do you do that while excluding characteristics?
As well as agreeing on the importance of PSRs, I think most of us would agree on the importance of equality. But that does not mean starting from a point of equality. How can we ignore how people with some characteristics, in particular those picked out in Clause 1, are overrepresented in the criminal justice system? The Sentencing Council acknowledges this in correspondence, and so does the Lord Chancellor.
It is then argued that differential treatment on the basis of race or ethnicity offends the principle of fair treatment before the law. Is “fair” really a synonym for “equal”? I take the view that one has to recognise where there is inequality in order to address it, and addressing it does not always—and not in this context—mean treating everyone the same. As the Sentencing Council notes, there are inequalities in the sentencing regime, for instance around age, which the Bill does not spell out, although this of course comes within the non-exhaustive list that is not on the face of the Bill.
The council’s view is that
“providing a sentencer with as much information as possible about the offender is one means by which … disparity might be addressed”.
While the council agreed with the Government that
“any systemic issue relating to different ethnic groups will be a matter of policy”,
Lord Justice Davis, who has been referred to, said that sentencers must still
“do all that they can to avoid a difference in outcome based on ethnicity. The judge will be better equipped to do that if they have as much information as possible about the offender”.
The Constitution Committee is currently undertaking work on the rule of law, and I am assured by those who are far more expert than me that positive measures are not necessarily incompatible with the rule of law. To me, the term “personal characteristics”, without definition, is confusing. The division between characteristics and circumstances is very grey. What, for instance, is addiction? I think it is a characteristic. That would undermine treatment, to which I have referred.
The list is not exhaustive, as I have said, and that adds to the confusion. There is a risk of confusing characteristics under this Bill with protected characteristics defined for a different piece of legislation. The Constitution Committee is also critical of the Bill because of the uncertainty—I might say incoherence—in this area. I really look forward to the MoJ’s response to the points that we make in the report.
The committee also refers to retroactivity, which offends constitutionality. Can the Minister explain to the House what is to happen with pre-sentence reports that are currently—or will be at the point when the Bill becomes law, as I assume it will—in the pipeline, including reports that have been prepared but are not yet before the court? Are they to be reviewed or rewritten? It is really quite confusing to fast-track a Bill to such an extent that commencement is immediate; normally there is time for those affected by legislation to prepare.
I keep coming back in my mind to the question of how one can sentence without recognising the whole person. I also wonder how one can amend a one-clause Bill without being accused of wrecking it, but I know that my noble friend Lord Marks has been thinking about this very carefully, and I am hopeful that we will find a way to make it a Bill that is both coherent and accessible. I wish—not only for procedural reasons but because the focus should be on an effective, trusted system—that we were not starting from here, and I hope this is not the finishing point.
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.
At the heart of the Christian gospel is a God who holds together both justice and mercy. We need a big long-term vision. Surely long-term vision must be about transforming lives and communities, and that includes victims as well as offenders, recognising that many offenders are also victims.
If we are committed to the transformation of society, we need to take account of the impact of sentencing on families and the wider community. I am not saying that people who commit crimes should not receive punishment, but I am saying that sentencing should be much more than this and give the best possible outcomes for society.
In a recent judicial critique focused on sentence inflation, four former Lords Chief Justice, including the noble and learned Lord, Lord Thomas, highlighted that people in prison are individuals, not statistics, and that the
“consequences of imprisonment on people’s lives—in prison and upon return to the community—need to be considered in the whole”.
They go on to say:
“Evidence suggests that what happens during and after a sentence, including rehabilitative interventions and resettlement support, is more important than sentence length”.
If we are to treat people in the justice system as individuals, that surely includes taking into account people’s circumstances, such as whether a woman is pregnant, and their characteristics, such as neurodiversity. I echo what was said about characteristics. We cannot pretend that circumstances and characteristics do not matter. Wise sentencing is threatened by this am-dram politics, and the Bill risks taking us backwards, not forwards. I firmly believe that we need less political control over sentencing, not more.
I urge the noble Lord to revisit the House of Commons Justice Committee’s 2023 recommendation of the establishment of an independent advisory body on sentencing. I would propose an additional step: a commitment from the Treasury, set out to Parliament, where Ministers propose to expand or lengthen custodial sentences against recommendations from the advisory board, thus resetting the relationship between politics and justice, including the public purse.
There is more I could say—much more—but I will end by engaging with the Government’s own rationale for this legislation. The Justice Secretary says that inequality in society is a matter for policy and not for the judiciary. How, then, will the Government create an equal society over their term of office so that these guidelines become redundant?
My professional journey took me from catering college in Leeds and York. I became a school meals cook and then started work in the kitchens of a pit-top canteen at one of the five super-pits around Selby, and later moved into residential care for the elderly, following in my parents’ footsteps once more. It was at Carentan House, formerly a workhouse, where I truly found my calling. I saw at first hand the importance of dignity in care and the power of collective action to bring about change. It was there that I became active in the National Union of Public Employees, which later became UNISON. For over four decades, I have worked for North Yorkshire Council, during which I have fought for the rights of working people, serving as branch secretary in North Yorkshire and in 2015-16 serving as president of UNISON.
Public service has always been in my blood. Like my parents before me, I became a Labour councillor, though my route to office was far from conventional. In 1999, a miscounted vote led to an incorrect result being declared. It took a trip to the High Court and the oversight of a judge to correct the mistake. In a moment that I will never forget, he turned to me at the end and said, “I have always wanted to say these words: ‘I hereby declare Wendy Ruth Nichols duly elected’”. That experience taught me that democracy is precious, but it also requires vigilance.
Beyond local government, I had the privilege of serving on the national executive committee of the Labour Party for nearly 14 years, including some of our most challenging times in our party’s history. I am proud of that work, because I believe that politics should be about service, about building a fairer society and about ensuring that those who come after us inherit something better.
As I take my place in your Lordships’ House, I do so with immense gratitude but also a sense of personal loss. My husband Keith, a proud railwayman and a trade unionist, passed away in 2008. My parents, who shaped so much of who I am, died within a month of each other in 2009. I wish that they could be here to see this moment and share in this honour, but I know that they are with me in spirit, just as I know that my greatest legacy lies not in titles, robes or offices but in my children, Rachel and Shaun, my daughter-in-law Jenny and my six wonderful grandchildren: Brandan, Fiona, Libby, Ella, Michael and Aimee.
I now turn to the debate. This is, again, something of interest to me. Over the years, I have represented many of our members in the Probation Service and have seen the amount of work that they have to do. While PSRs themselves are not an indication of sentence, we know that there is evidence that they are an important element in sentencing. Receiving a PSR is more likely to discourage a judge from sending an offender to prison, and therefore will help to reduce pressure on prison numbers. We know that that there are inequalities and disparities in society and in our justice system, which must be addressed. But these guidelines amount to treating people differently before the law, according to their race or their religion, which breaks an ideal that our justice system is built on: equality for all before the law. One of our most closely held ideals is equality before the law and that we can never have two-tier justice because it completely undermines public confidence.
Clearly, the Sentencing Council is straying into matters of policy in trying to correct for racial disparities using differential treatment methods. Pre-sentence reports are very important to give the judge as much information about the offender as possible and can cut levels of reoffending when used properly. However, I hope that the Minister will agree with me that they should be available for all offenders and that access to a pre-sentence report should not be determined by an offender’s ethnicity, culture or faith.
Pre-sentence reports are important but, very often, probation is stretched so thin that officers do not have time to complete them. What will the Government do to ensure that, where a PSR is required and requested, the Probation Service will have the capacity to do that?
I note that the Bill removes the whole problematic section of the guidelines, but the Lord Chancellor has been clear that pregnant women or victims of domestic abuse would still very much be expected to have a pre-sentence report.
I look forward to working with all your Lordships in the months and years ahead. I bring with me the values of Selby: community, fairness and a belief that we all do better when we stand together. I thank noble Lords for their time and their welcome, and I look forward to playing my part in this great institution. The path from the pit-top canteen to the red Benches of this House has been eventful, and I have no doubt that the next chapter will be just as remarkable.
For me, the small but important increases in the legal aid area, and particularly the setting up of the Gauke and Leveson reviews, are among the MoJ’s most significant achievements. However, I cannot say that I am equally delighted to see the Bill before the House this afternoon, taking up precious parliamentary time that could be spent legislating, or at least debating, other more vital justice issues. Frankly, I find it hard to accept that we could not have resolved this impasse without the need for legislation, let alone fast-tracked legislation.
After all, there is an overwhelming consensus as to the value and necessity of pre-sentence reports. In addition, there is surely widespread agreement that the Gauke review, due out later this month, and the legislation that follows it, will be of much greater significance than the Bill as far as sentencing is concerned. It will also, of course, be relevant to the issues we are discussing this afternoon at Second Reading. The danger, it seems to me, is one of overlegislating. By not allowing something as broad as personal characteristics to be taken into account in sentencing, we may, almost by accident, be excluding other factors that are highly relevant to any sentencing decision.
This takes me to an amendment moved but not voted on in the other place. It was in the name of the right honourable Member, Jeremy Wright, a distinguished Attorney-General in the coalition and succeeding Tory Governments. He argued, cogently, that if anything that comes within the broad category of the term “personal characteristics” is forbidden from being considered by the Sentencing Council when setting out its guidelines, this could well cover other personal characteristics—he mentioned physical or learning difficulties, or severe injuries—which is surely not the intention of the Bill and could make the difficult task of the sentencer even more difficult. Jeremy Wright suggested a change in wording to “demographic cohort”, thus giving Ministers their point but not making the result confused or unintelligible. I am attracted by this approach and hope that the Government, following this Second Reading, will carefully consider Mr Wright’s proposition, if not using his actual words.
I want to make two final points. Both the current chair of the Commons Justice Committee, Andy Slaughter MP, and his predecessor, Sir Bob Neill, have expressed regret that the Bill, and particularly the events leading up to it, have been used by some to undermine judicial independence and to allow ad hominem attacks on judges under the guise of belated objections to these guidelines. I agree entirely with the two chairs of the Commons Justice Committee. Alas, today we see in other countries around the world, including, surprisingly, the United States of America, how easy it is for Governments, and Oppositions, to attack the judges. As a matter of course, we do not do that in this country, I hope, and I find it more than sad that—indeed, I am angry that—it has happened here.
Independence of the judiciary is of course a fundamental part of the rule of law. Attacking judges undermines that independence, and all of us should resist the temptation, however irresistible some politicians seem to find it. We should know better.
What unites us, and what makes this legislation quite hard to understand, is that all of us believe in the importance of pre-sentence reports, which play a vital part in sentencing. I practised criminal law for over 25 years, defending more than prosecuting. That was some time ago, of course, but in those days, it was inconceivable that a first-time offender—or any offender, really—who might face a first custodial sentence would be sentenced without a properly prepared pre-sentence report. By properly prepared, I do not mean a 10-minute interview in the cells and then back into court; I mean a well prepared and thorough report, with a probation officer being given the time and space to do their job.
We were all surely shocked to learn that the number of pre-sentence reports has fallen by 42% between 2015 and 2023, from 160,000 to 90,000. I am afraid that one has to ask the question: how many of these reports are having to be prepared much too quickly?
I hope we can all agree that pre-sentence reports are an essential part of our system and cannot be allowed to be compromised for financial reasons. That is why the future of the Probation Service is so vital to this debate, and why, in my view, it would have been better, if possible, to have waited until the Gauke review and the legislation that follows it.
It may be that the addition of the adjective “demographic” in the Explanatory Notes was designed to give more specificity, but, unfortunately, the categories of personal characteristics specified in Clause 1(3) seem only to add confusion. To begin with, we do not see the most obvious characteristic defining a demographic cohort—age. Moreover, the characteristics mentioned in the Bill, such as “belief” and “cultural background”, are not usually understood as characteristics defining membership of demographic cohorts. So I am not sure that the description in the Explanatory Notes of the cohorts as “demographic” really tells us very much about the meaning of personal characteristics.
Of the three personal characteristics that are expressly mentioned, two—“race” and “religion or belief”—are also protected characteristics under the Equality Act, while the third, “cultural background”, is not. By the way, cultural background is itself a rather vague notion. I was going to ask the Minister to provide some clarity on the relationship between personal characteristics in the Bill and protected characteristics under the Equality Act, but he addressed this issue in part in his introductory remarks. However, I am not sure that what he said makes the boundaries of the concept of “personal characteristics” any easier to identify. The Bill, as currently drafted, lends itself to both a broad and a narrow understanding of personal characteristics. Based on the Minister’s introductory remarks, it seems that the Government take the view that the broad interpretation is to be preferred. Can he tell us whether this means that personal characteristics include all protected characteristics under the Equality Act, as well as other unspecified characteristics? If so, how do we identify these other characteristics?
The Explanatory Notes also draw a distinction, on which others have commented, between “personal characteristics” and “personal circumstances”, but can the Minister help us understand the dividing line between them? What about, for example, education or socioeconomic status: is that a characteristic or a circumstance?
There are constructive avenues through which some of these issues can be addressed and the clarity of the Bill can be enhanced. It will be important for us to consider these thoroughly in Committee to ensure that the Sentencing Council receives a far clearer legislative instruction than the current draft of the Bill provides.