My Lords, I hope the House will permit me to begin with a word about the noble and learned Lord, Lord Etherton. He was, as the noble and learned Lord, Lord Thomas of Cwmgiedd, remarked, a very great man. Outside this House, he was a brilliant Chancery lawyer and a wise judge. In this House, he was a wonderful person to have on your side and, I remember as a Minister, an intimidating, if always courteous, opponent to have on the other side of a debate. I will miss him. May his memory be a blessing.
The Bill has been introduced to remedy a problem, and it does more or less remedy that problem. But it could, and we say should, do more, because the immediate problem that led to the Bill has shone a light on a deeper issue of constitutional significance in the criminal justice system. On that point, I agree with the noble Baroness, Lady Hamwee, although we differ on the substance of the Bill and what has led to it.
Not surprisingly, given the number of former senior judges from whom we have heard this afternoon, we have heard many excellent speeches. More surprisingly, given the number of lawyers who have spoken, we have kept more or less to time. But I immediately single out a non-lawyer: the moving maiden speech of the noble Baroness, Lady Nichols of Selby, was a real privilege to listen to. I knew that you could get almost anything at Woolworths, but I did not appreciate that you could get future Baronesses as well. I look forward to hearing more from the noble Baroness during our work in this House in the coming months and years.
As we know, the Sentencing Council, an unelected body with eight members appointed by the Lord—now Lady—Chief Justice and six members appointed by the Lord Chancellor, proposed sentencing guidance that could have led to a divisive criminal justice system, one that risked dividing people by race, religion and identity. That point, it appears, is not now in dispute, at least between the two Front Benchers, given that first the shadow Lord Chancellor and then the Lord Chancellor herself publicly opposed the proposed guidelines.
Originally due to come into effect from 1 April this year, the proposed guidelines said that it will “normally be considered necessary” for judges and magistrates to request a pre-sentence report for certain cohorts of individuals. Those cohorts included the defendant belonging to
“an ethnic minority, cultural minority, and/or faith minority community”.
I should say at the outset that I too am not entirely sure what is meant in these terms by a “cultural minority”, if it is not already an ethnic minority or a faith minority. Are we talking about Morris dancers or devotees of Wagner’s “Ring” cycle? As the Bill uses the same term, this is not really a joke. If the Government want to put this phrase into legislation, they have to tell us what it means. I look forward to the Minister, to whom I have given notice of this and other points, giving a few examples, I hope, of a relevant cultural minority in this context.
What was the effect of these guidelines? It was quite simply that, if you were in one of these groups, a pre-sentence report would “normally be considered necessary”. What is the effect of that? It means that your chances of receiving a non-custodial sentence have increased. Pre-sentence reports, typically written by a probation officer, are key to judges and magistrates deciding whether to sentence an offender to prison or to a non-custodial community order, particularly in borderline cases. As a result, deciding which defendants are included in the cohorts where a pre-sentence report will “normally” be required, and which are not, can be key in deciding who goes to prison and who does not.
As a matter of statute, courts have to follow these guidelines from the Sentencing Council; they are not optional. Prior to 2009, courts in England and Wales were directed that, in sentencing, they must
“have regard to any guidelines which are relevant to the offender’s case”.
That was from Section 172(1) of the Criminal Justice Act 2003. During the passage of the Coroners and Justice Act 2009, the provisions concerning sentences attracted considerable debate, and the previous requirement for courts merely to “have regard” to any guidelines was replaced in Section 125 with courts being required to
“follow any sentencing guidelines which are relevant … unless … contrary to the interests of justice”.
That was replicated in Section 59 of the Sentencing Act 2020.
I should therefore now deal with some of the points made on behalf of, and by, the Sentencing Council. For the avoidance of any doubt, although this ought not to be necessary to say, I firmly believe in the independence of the judiciary. Indeed, I believe that we have the finest judiciary in the world. But that does not mean that one cannot respectfully respond to points that have been made publicly on behalf of the Sentencing Council to the Lord Chancellor. So, when the chair of the council, Lord Justice Davis, wrote to the Lord Chancellor on 10 March this year, he made the point that it is still possible for a judge or magistrate to order a pre-sentence report if they are sentencing an individual not captured within one of these demographic groups. That is, of course, absolutely true. But, with respect to Lord Justice Davis, it rather misses the point. It is the almost automatic nature of the pre-sentence reports for certain groups, and their discretionary nature for other groups, that is the issue at heart.
Similarly, in his later letter dated 27 March, the learned Lord Justice said:
“The crucial point is that a pre-sentence report will provide information to the judge or magistrate. It will not determine the sentence”—
a point made a few moments ago by the noble Lord, Lord Marks of Henley-on-Thames. Again, that is true, but, again with respect to the learned Lord Justice, although a pre-sentence report does not mean that you will get a non-custodial sentence, it is certainly harder to get a non-custodial sentence without one.
To put it bluntly, if the Minister and I were each charged with the same offence, in the same court and with the same previous criminal record, these guidelines would have meant that I would almost certainly get a pre-sentence report, and he might or might not. That would mean that my chances of a non-custodial sentence were better than his, simply because I am a member of a minority faith community. That, I suggest, is entirely unjustifiable.
It is no answer to that point, I suggest, to say that there are disparities in sentencing in our criminal justice system for certain groups. There are those disparities, and we need to understand why they exist and work to eradicate them. But these guidelines are not and never were the answer to that problem, for three reasons. Like my noble friend Lord Jackson of Peterborough, I add that I am also indebted to Policy Exchange’s paper by David Spencer, and especially to the person who contributed research support for it.
First, the guidelines did not target only those groups where we see disparities. Black defendants, for example, do appear to receive longer sentences for the same offence than do white defendants. But, to take an example of a minority faith community, do Jewish defendants receive longer sentences? I have seen no evidence of that, and it does not appear that the Sentencing Council did either. These guidelines were therefore not properly targeted at what it said was the problem.
Secondly, as the Minister reminded us, the reason why black defendants receive longer sentences—to use the words of Lord Justice Davis’s own letter—“remains unclear”. What is clear is that the reasons are complex, as the noble Baroness, Lady Mattinson, reminded us, and do not—or certainly do not necessarily—involve bias on the part of sentencers.
I am sure that many noble Lords are, like me, devotees of the legal podcast “Double Jeopardy”, hosted by the noble Lord, Lord Macdonald of River Glaven, the former Director of Public Prosecutions, who alas is not in his place. As I see that the noble and learned Lord Falconer of Thoroton, is also not in his place, I feel sufficiently charitable to say that his legal podcast, “Law and Disorder”, is also very good—and sufficiently brave to add that it is almost as good as that of the noble Lord, Lord Macdonald.
In his podcast recently—the noble Baroness, Lady Fox of Buckley, touched on this—the noble Lord, Lord Macdonald, pointed out that black defendants plead not guilty in a higher proportion than do white defendants, and of course sentences are higher if you are found guilty after a not guilty plea, because you lose the guilty plea discount. He pointed out that black defendants also elect for Crown Court trial proportionately more than do white defendants, and sentences are higher after conviction in the Crown Court than in the magistrates’ court. I am not suggesting those two points explain the entirety of the disparity; in fact, I am sure that they do not. There are likely to be a number of reasons for this disparity, which, I repeat, we should work to eradicate. On that point, I agree—and this is a sentence that I rarely utter—with the noble Baroness, Lady Jones of Moulsecoomb. But to get back in my normal furrow, where I disagree with her is this: you do not work to eradicate disparities by introducing additional and different discrimination into the system to somehow correct for those disparities, because there is one fundamental principle at the heart of our justice system, and it is this: equality before the law.
I am fond of the Minister, as he knows, so I do not propose to give him too hard a time in having to defend his boss, the Lord Chancellor. But the plain fact of the matter is that, despite having a representative on the council when the guidelines were discussed, the Lord Chancellor acted only once alerted to the problem by the shadow Lord Chancellor. The Lord Chancellor has said that she was not personally aware of the guidelines until Mr Jenrick’s statements brought them to her attention, and of course I entirely accept that. However, given the seniority of some of the officials attending those meetings, the guidelines should have had warning bells ringing and lights flashing in Petty France. That they did not realise that these guidelines would not be acceptable to Ministers would indicate that there might be something of a problem of groupthink. To be fair to the Lord Chancellor, once she had been alerted to it, she got to grips with the issue, including, as I am sure that noble Lords have seen, by way of a polite but sometimes feisty correspondence with Lord Justice Davis, and this Bill is the result.
However, the real issue is the relationship between the Sentencing Council and the Government and between the Sentencing Council and this Parliament. I want to take a few minutes on this topic, because it is fundamentally important and often misunderstood. While I listened carefully to the noble and learned Lord, Lord Thomas, as I always do, this is Second Reading and not Committee, so I want to take a moment to touch on this issue.
To say, as many do, that sentencing is a matter for judges and judges alone is too simplistic and, if meant literally, also wrong. Individual sentencing—that is, the sentence handed out in a particular case—is rightly a matter for, and only for, trial judges and magistrates. The Government must not be involved in that. But the setting of overarching sentencing policy is very clearly a matter for the Government and Parliament.
Here I must again disagree, and again with respect, with Lord Justice Davis, the chair of the Sentencing Council. In his 10 March letter to the Lord Chancellor, he said:
“There is general acceptance of the guidelines by the judiciary because they emanate from an independent body on which judicial members are in the majority. The Council preserves the critical constitutional position of the independent judiciary in relation to sentencing.
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 respectfully disagree with Lord Justice Davis, for three reasons.
First, as I have said, we need to distinguish between the sentence imposed on an individual offender and the wholesale policy environment in which sentencing frameworks are set. The former is for the judiciary, and the judiciary alone; the latter is not. Parliament, and therefore Ministers and government, must have a critical role in setting overarching sentencing policy and frameworks. This Bill, for example, is entirely proper constitutionally. Indeed, for many decades we did not have a Sentencing Council at all; it is a creature of fairly recent statute.
Parliament obviously has an important role in setting sentencing policy. The upper limits for the sentencing of offenders are set by Parliament through statute—for example, in the Theft Act 1968. In addition to setting maximum limits, Parliament has sometimes set minimum limits for offences, although courts can often depart from that if exceptional circumstances exist. It is important that Parliament holds the pen because, ultimately, Parliament is accountable to the electorate. The public bear the impact of crime, and it is Government Ministers who are responsible for allocating public funds to the criminal justice system of courts, prisons, probation officers, police and lawyers. Those Ministers are ultimately accountable to Parliament and the electorate.
It was striking that Lord Justice Davis took the view in his letter—a point made in some of today’s contributions—that the inclusion of these specific cohorts in the proposed guidelines was not a
“policy decision of any significance”.
The fact that both the shadow Lord Chancellor and the Lord Chancellor immediately took a different view from that of the Sentencing Council, and that we now have this Bill before us, might indicate that it was in fact a policy decision of real significance and that government and Parliament are entitled to have a role in such policy decisions. I respectfully agree with much of the speech of the noble and learned Lord, Lord Hope of Craighead.
Secondly, Lord Justice Davis’s letter implied that the judiciary accepts and follows sentencing guidelines only because
“they emanate from an independent body on which judicial members are in the majority”.
With respect, that cannot be right. Judges follow the guidelines because they are part of a legally mandated framework, set out in statute, ultimately derived from Parliament. So long as any body is properly constituted under an Act of Parliament, of course our judiciary would follow it.
Thirdly, on a point made earlier, the distinction which Lord Justice Davis draws between courts and what he calls “the state” is, I suggest, somewhat elusive. Courts are part of the state, as the Courts and Tribunals Judiciary’s own website makes clear. I assume that, when Lord Justice Davis referred to “the state”, he actually meant the Executive or the Government. I agree with him, respectfully, that the Government should not be involved in sentencing individual offenders, but the Executive, and this Parliament, should be involved in the sentencing framework and in sentencing policy.
To that end, I invite the Minister to let us know whether as part of their thinking about the Sentencing Council the Government are again considering a proposal, not taken up by the majority of the working group which led to the establishment of the Sentencing Council, that sentencing guidelines from the Sentencing Council before they are implemented should be subject to approval by Parliament. Would he also tell us whether the Government are considering whether the House of Commons Justice Select Committee, which at the moment is a statutory consultee of proposed guidelines after they have been formulated, might itself have a representative on the council?
These are constitutional matters. I respectfully disagree with the noble Lord, Lord Marks of Henley-on-Thames, as to the answer to them, but we agree that these matters raise fundamental constitutional points. For those reasons, I look forward to working on this short but important Bill as it passes through this House. I am very grateful to the Minister for his engagement to date, and no doubt the House in all its quarters will debate in its usual way and seek to improve this Bill in its future stages.