Sentencing Guidelines (Pre-sentence Reports) Bill

[Caroline Nokes in the Chair]

I remind Members that in Committee they should not address the Chair as Madam Deputy Speaker. Please use our names when addressing the Chair. Madam Chair, Chair and Madam Chairman are also acceptable. Clause 1 Sentencing guidelines about pre-sentence reports

14:36:00

I beg to move amendment 1, page 1, line 6, leave out “different personal characteristics of an offender” and insert “an offender’s membership of a particular demographic cohort.”

With this it will be convenient to discuss the following: Amendment 3, page 1, line 7, at end insert— “(2A) After subsection (7) insert— ‘(7A) In the case of guidelines within subsection (4) about pre-sentence reports, the Council must, after making any amendments of the guidelines which it considers appropriate, obtain the consent of the Secretary of State before issuing sentencing guidelines as definitive guidelines. (7B) In any case to which subsection (7A) applies, the Secretary of State may— (a) consent to the issuing of guideline as definitive guidelines, (b) refuse consent for the issuing of guidelines as definitive guidelines, or (c) direct the Council to issue the guidelines in an amended form as definitive guidelines. (7C) Where the Secretary of State has consented to the issuing of guidelines under subsection (7B)(a) or has directed the Council to issue guidelines in an amended form under subsection (7B)(c), the Council must issue the guidelines as definitive guidelines in the appropriate form”.” This amendment stops sentencing guidelines about pre-sentence reports coming into force unless approved by the Lord Chancellor. Amendment 2, page 1, leave out line 10 and insert— ““a particular demographic cohort’ may include those related to—”. Amendment 4, page 1, line 13, at end insert— “(d) status as part of a group that may have experienced trauma from experiences of racism or discrimination— (i) inter-generationally and relayed to the defendant, or (ii) as a result of important historical events which may have had a greater impact on those from specific groups and cultures.” This amendment would ensure that sentencing guidelines about pre-sentence reports cannot include a defendant’s status as part of a group, particularly not if this involves considering events that may not have impacted the defendant personally. Clauses 1 and 2 stand part. New clause 1—Independent review— “(1) The Secretary of State must arrange for an independent review to be carried out of— (a) the effects of the changes made to section 120 of the Coroners and Justice Act 2009 by section 1, and (b) sentencing guidelines about pre-sentence reports. (2) The Secretary of State must, after consultation with the Sentencing Council, appoint a person with professional experience relating to pre-sentence reports to conduct the review. (3) The review must be completed within two years of the passing of this Act. (4) As soon as practicable after a person has carried out the review, the person must— (a) produce a report of the outcome of the review, and (b) send a copy of the report to the Secretary of State. (5) The Secretary of State must lay before each House of Parliament a copy of the report sent under subsection (4)(b) within one month of receiving the report.”

It is worthwhile at the outset of all debates on this Bill to restate that it is about pre-sentence reports that give information to sentencers that may be used in sentencing decisions, not about the passing of sentences themselves. Specifically, the Bill is about the guidelines issued by the Sentencing Council to sentencers about the circumstances in which a pre-sentence report should normally be asked for, and about the sort of information about an offender which such a report may provide and which may be appropriate to consider and take into account before deciding on an appropriate sentence in that offender’s case. There has been broad agreement—I see the Mother of the House, the right hon. Member for Hackney North and Stoke Newington (Ms Abbott), in her place, so I will not say unanimity—that an offender’s ethnicity, race, culture or faith are on their own not that sort of information and that the Sentencing Council was wrong to suggest that pre-sentence reports should be awarded on that basis. I would argue that is because, even if there may be points to make about the treatment or experience of members of the ethnic, faith or cultural group to which the offender in question happens to belong, what is relevant to the sentencing of that offender can only be the treatment or experience to which the particular offender has themselves been subject, not whether they have arisen in the cases of other members of the same group who are not before the court. That is effectively the impact of amendment 4 in the name of the shadow Minister, my hon. Friend the Member for Bexhill and Battle (Dr Mullan). That is why the Government are right to seek to exclude even from the process of asking for a pre-sentence report—let alone from passing sentence itself—the making of decisions based only on membership of such a group. That is after all what the Government have said this Bill is for. These groups are described in the explanatory notes to the Bill as “particular demographic cohorts”. Paragraph 8 says, “The Bill is intended to ensure that Sentencing Guidelines are drafted in such a way as to prevent differential treatment and maintain equality before the law. 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, rather than the particular circumstances of that individual.” Despite that explanation in the explanatory notes, the Bill goes further than that by prohibiting the Sentencing Council from including in a sentencing guideline any “provision framed by reference to different personal characteristics of an offender.” That is what clause 1(2) says in inserting language into the Coroners and Justice Act 2009. I think that language is significantly wider in impact than reference to membership of particular demographic cohorts—undesirably so, in my view. That is why I have tabled amendment 1, which would adopt the language used in the explanatory notes. Let me explain why I think that would be preferable. My starting point is that I do not believe all personal characteristics are inappropriate to consider in a sentencing decision. There is, of course, much more to be considered in a sentencing decision than simply information about the offender, particularly the seriousness of the offence and its consequences, but relevant information about the offender is needed as part of the process. It surely cannot be right, then, to prohibit the Sentencing Council from encouraging sentencers to find out more about some of the personal characteristics that are relevant in reaching a more informed and therefore better sentencing decision—for example, a physical or learning difficulty, or a brain injury from which an offender will not recover. The relevance of that information is not just in forming a fuller picture of the offender to be sentenced, but in assisting a sentencer to know whether that offender is capable of carrying out aspects of a community order, including work in the community, which the sentencer may want to consider as a potential sentencing option. It is worth underlining of course that the ordering of a pre-sentence report—whatever it says when it is produced—does not bind the hands of a sentencer to do as it recommends, but in reality, without one a sentencer’s options are often more limited. That is why guidance on when to ask for a pre-sentence report matters.

I defer to my right hon. and learned Friend’s experience, but is there not an argument for every case to have a pre-sentence report in order to truly understand what an individual has faced and whether there are any mitigating factors? I appreciate that that could create a backlog for these services, but is it not one possible solution to the problem that the Sentencing Council was worried about—namely, that different cohorts might have different sentencing outcomes?

My hon. Friend makes a fair point in relation to offenders who hover on the border between community sentences and custodial sentences, but he will know that, in the Crown court at least, the majority of such offenders already have a pre-sentence report. Of course, there are also offenders who come before the courts for sentencing and it is blindingly obvious either that a custodial sentence will follow, or that neither a community sentence nor a custodial sentence is realistically in prospect, so I do not think it right to say that we should have a pre-sentence report in every case, but there is already in law a presumption that pre-sentence reports should be ordered unless it is unnecessary to do so. What we are seeking to do here is respond to a very specific set of circumstances that have arisen as a result of a Sentencing Council decision. As he may have heard me say on Second Reading, I do not think that the Sentencing Council handled this well, and as a result we are having to do something that we would otherwise not have to do. Sentencing offenders is, in all circumstances, a difficult business. The fact that different offenders receive different sentences, even for the same offence, is not necessarily evidence of a defect in sentencing practice as a result of guidelines or otherwise, but is more likely a reflection of the reality that every case and every offender is different. We should not, I suggest, try to stop judges reaching the appropriate conclusion, assisted by Sentencing Council guidelines, in each case before them.

Nobody is trying to stop judges sentencing in individual cases. All the Sentencing Council was seeking to do was ensure that judges and magistrates had the maximum amount of information before coming to a decision on the sentence.

Yes, I think the right hon. Lady is right that that is what the sentencing guidelines were aiming at, but I am afraid that the way in which they were phrased rather missed the mark, in my view. It is perfectly true to say that it is a good thing in most sentencing cases to get as much information as possible, but the sentencing guidelines have, as she will appreciate, particular influence on sentencers, who are obliged to follow them unless doing so is not in the interests of justice. The tone that is set by the Sentencing Council in the guidelines that it drafts gives a good indication to sentencers about the sorts of things that they ought to take into account in sentencing. As she heard me say—I think this is an important point to make—we are talking about the ordering of pre-sentence reports and not about sentencing itself.

14:45:00

None the less, as I said, without a pre-sentence report, the number of options that can be imposed are limited, and with a pre-sentence report, sentencers have more options, so whether sentencers are encouraged to order pre-sentence reports is not irrelevant. My concern is that the way in which the Sentencing Council has gone about this is unhelpful. However—the right hon. Lady will hear me expand on this—it would be wrong to throw the baby out with the bathwater, and it is also important to recognise that some of the Sentencing Council guidelines are profoundly helpful to sentencers; they indicate that we should, in many cases, get relevant information when considering individual sentencing decisions. For all those reasons, we should fetter the sentencing process only as much as we need to in order to meet legitimate policy objectives, where genuine questions of policy arise. That is, after all, what the Government said they were trying to do here.

Amendment 1 would allow us to stop the Sentencing Council recommending pre-sentence reports for those who simply belong to a demographic group, but not exclude them for those who have other personal characteristics that are clearly more relevant to the sentencing decision and do not, I suggest, give rise in any way to so-called two-tier justice. The Bill will still allow the Sentencing Council to issue guidelines recommending pre-sentence reports to explore the personal circumstances of an offender who is to be sentenced, even though it will prohibit that in relation to the offender’s personal characteristics, so the question arises of whether all the information about an offender that sentencers should properly take into account in sentencing can be justifiably described as the offenders “personal circumstances”.

I will concede that there is a danger of getting into fairly fine semantic distinctions here, but to me at least, “characteristics” are things that are intrinsic to the offender, while “circumstances” are the situations in which offenders find themselves. The two are not the same. For example, being pregnant, addicted, a primary carer, or a victim of abuse, grooming or modern slavery could all be sensibly described as personal circumstances, but disabilities or life-altering permanent injuries feel more like characteristics.

We do not need to get into all this in order to do the job that the Government want to do. Ministers have made it clear that they are seeking to target this legislation carefully to avoid trespassing on the separation of powers, and because they are not seeking to undermine the independence of the Sentencing Council any more than is necessary to wrest back control of what are properly matters of policy. I suggest to the Minister that the more precise wording in amendment 1—it is, of course, also Government drafting, because it appears in the explanatory notes—better meets the Government’s own aims than the language in the Bill. If he does not agree, I hope that he will explain clearly in this debate why the Government have taken a more expansive approach.

Finally, let me address amendment 3 in the name of the shadow Minister, my hon. Friend the Member for Bexhill and Battle (Dr Mullan), and other right hon. and hon. Friends. As my hon. Friend the shadow Minister knows, I also have concerns about the breadth of the language in that amendment. I recognise that some people would like to abolish or radically reform the Sentencing Council, but the Bill does neither of those things, meaning that its scope does not allow for a wider debate about the council’s wider purpose and value—of course, you would not allow that debate either, Madam Chairman.

As and when the Bill passes, the Sentencing Council will continue to operate, so when we consider amending the Bill further, we must have regard to the council’s ability to operate effectively and convincingly. It can play its role in the criminal justice system effectively only if the guidelines that it produces are authoritative. Sentencers are likely to see them as such only if the Sentencing Council is clearly independent, and is seen to make its judgments from a legal, not a political, perspective.

Amendment 3 states that all Sentencing Council guidelines involving pre-sentence reports must be agreed by the Secretary of State, and that the Secretary of State may, if she so chooses, rewrite those guidelines. There are two problems with that. First, the Lord Chancellor has made clear and sensible distinctions between guidelines that relate to matters of policy and those that relate to matters of judicial discretion in specific sentencing cases, with the latter being matters for the judiciary alone. I am not convinced that all conceivable guidelines relating to pre-sentence reports will qualify as matters of policy, so taking political control of all such guidelines would not be appropriate.

Secondly, the Secretary of State’s approval of guidelines and, even more so, the capacity for her to rewrite the guidelines are incompatible with the independence of the Sentencing Council. The Sentencing Council could be obliged to publish in its name a guideline with which it fundamentally disapproved. In the law as it stands, the Sentencing Council must consult the Lord Chancellor and the Justice Committee—I see the Chairman, the hon. Member for Hammersmith and Chiswick (Andy Slaughter), in his place—but that is not the same as the Sentencing Council requiring ministerial approval to publish the guidelines. It is, of course, ministerial approval that is proposed in the amendment, not parliamentary approval—those are very different things. We are discussing a parliamentary decision about the guidelines, not allowing a Minister to make that decision for himself or herself.

As I said on Second Reading, by its handling of this issue, the Sentencing Council has brought on itself both this legislation and, probably, a wider discussion about its future. However, we are not having that discussion today; we are discussing legislation that is intended to allow the Sentencing Council to continue to operate and to fulfil what I believe is an important task.

There is a big gap between legislation and individual sentencing decisions. The Sentencing Council fills that gap, offering help to sentencers in their role. I suspect that if the Sentencing Council were not fulfilling that function, someone or something else would have to do so. In that gap between legislation and individual cases, the closer we are to legislation, the more legitimate parliamentary and ministerial involvement is likely to be; and the closer we are to individual cases, the more danger there is of trespassing on judicial independence and the separation of powers, so we should tread carefully.

If we are to compromise the independence of the Sentencing Council in substantial ways, we should do it only having considered all the implications of doing so, but that is not what this Bill allows for. It is designed to do a specific job, and I think it could do it even more specifically, hence my amendments.

It is a pleasure to take part in the Committee stage of this short Bill. On Second Reading, only a few days ago, I set out my views on the merits or otherwise of the Bill; how it affects the role of the Sentencing Council; the council’s consultation on this guideline; and the response to that consultation by the then Government, through their sentencing Minister, and by the Justice Committee, through my predecessor as Chair, Sir Bob Neill KC. I also regretted the way that the Bill has been used to undermine judicial independence, and to allow ad hominem attacks on judges under the guise of belated objections to the guideline. I am not the only person to raise these concerns, and I agree entirely with the article on this matter by Sir Bob in The Times last Thursday. I do not propose repeating any of his arguments; nor do I need to spend a long time on the amendments tabled for debate. Those proposed by the official Opposition do no more than continue on another front the culture war that is the obsession of the shadow Lord Chancellor in his quest for higher office. I am more sympathetic to the new clause in the name of the Liberal Democrat spokesperson, the hon. Member for Eastbourne (Josh Babarinde), who is an important member of the Justice Committee. Given the fractured nature of the debate around the Bill, and the testy relationship between the Sentencing Council and the Ministry of Justice, it may be sensible to review the effect of the Bill, but I am not sure we need to put that into legislation. Indeed, the sentencing landscape is about to shift fundamentally with the imminent publication of the independent sentencing review, which is swiftly to be followed by a sentencing Bill. I suspect that issues raised by this Bill will get swallowed up in that process, and the Lord Chancellor has indicated that it may include a review of the role of the Sentencing Council. I do not want to stir the pot further, but I observe that had the Sentencing Council been prepared, without the threat of legislation, to postpone implementation of the guideline, all these matters might have been dealt with in one Bill, and in the light of David Gauke’s recommendations. The parliamentary and ministerial time that has been spent debating a relatively narrow point could, in my view, have been better spent on other matters requiring urgent attention in our courts and prisons.

Does the hon. Gentleman accept that the reason why we are here today is an error of judgment by the Sentencing Council, on which it refused to back down until threatened with legislation? Does the amendment proposed by the shadow Justice Secretary not offer greater protection to the public from future errors of judgment by the Sentencing Council?

As I say, I do not want to repeat everything I said on Second Reading. I made a case then for why the Sentencing Council had behaved quite properly. It was complimented by many people—including the Justice Committee, on which the hon. Gentleman serves—for the way it conducted its consultation. I have a great deal of sympathy with the council and its chair, who were somewhat surprised by the reaction at that stage, the guideline having been approved by pretty much everyone who considered it at that time. On the views of the hon. Gentleman and other members of the Justice Committee, whose opinions I have a great deal of time for, the Sentencing Council was a little stubborn when confronted with the Lord Chancellor’s view, as well as those of other Members of the House, and it could have acted to prevent us all needing to discuss this today; as I say, there are many other matters that need our attention. On the amendments in the name of the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright), as I would expect from a distinguished former Attorney General, his amendments go to the central issue in the Bill, which is whether it does what the Government intend it to do. I hope the Minister will address the issue of what a “personal characteristic” is, as opposed to a particular demographic cohort, and the question of what characteristics are caught by clause 1. I will take a few minutes, if I may, to add some related questions on which I am seeking the Minister’s guidance. First, I turn to the effect of the Bill on the sentencing guidelines already in force. The effect of the Bill goes beyond the imposition of the community and custodial sentences guideline and future guidelines; it would also render unlawful the inclusion of provision framed by reference to different characteristics of an offender in all definitive sentencing guidelines by the Sentencing Council that have already been issued and are in force. The potential retrospective effect of the Bill on guidelines already in force could create legal uncertainty as to their lawfulness. There are two main examples of overarching guidelines in force that could be caught by the Bill: the guideline on sentencing children and young people, and the guideline on sentencing offenders with mental disorders, developmental disorders or neurological impairments. In relation to offence-specific guidelines, a significant number contain mitigating factors framed by personal characteristics that have expanded explanations referring to the need to order a pre-sentence report—for example, an explanation for the mitigating factor of “age and/or lack of maturity” in the aggravated burglary guideline. By way of another example, the explanation of the mitigating factor of pregnancy, childbirth and post-natal care in the same guideline states: “When considering a custodial or community sentence for a pregnant or postnatal offender…the Probation Service should be asked to address the issues below in a pre-sentence report. If a suitable pre-sentence report is not available, sentencing should normally be adjourned until one is available.”

15:00:00

In a letter to the chair of the Joint Committee on Human Rights on 24 April, the Minister wrote:

“Once the Bill is in force, any provision in sentencing guidelines that is of the description in the new subsection (4A) will cease to be lawful and so cease to have effect. I can therefore confirm that the Bill will, as a matter of law, affect both new and existing guidelines. In practice, this means that some existing guidelines will be affected by the Bill, including offence-specific guidelines related to mitigating and aggravating factors, which set out guidance about PSRs for specific cohorts.”

To my mind, that prompts several questions. First, have the Government determined which existing guidelines will be rendered unlawful by the Bill? Secondly, why did the Government decide to make the provision in the Bill apply to all guidelines, rather than just the imposition of the community and custodial sentences guideline, which was issued by the Sentencing Council as a definitive guideline on 5 March 2025? Thirdly, are the Government willing to limit the effect of the Bill so that it does not affect the legality of any guidelines currently in force? All those matters are in the interest of clarity.

There is also the matter of the definition of personal characteristics, which was touched on by the right hon. and learned Member for Kenilworth and Southam. The Bill states that guidelines produced by the Sentencing Council cannot include provision framed by reference to “personal characteristics”. The Bill then specifies that personal characteristics include “in particular” race, religion or belief and cultural background. The list is non-exhaustive and therefore covers other personal characteristics, such as age, disability, sex and sexual orientation. Clause 1 will therefore render unlawful the following cohorts, which were included in the imposition of the community and custodial sentence guideline:

“a young adult…female…an ethnic minority”,

which we have discussed,

“pregnant or post-natal…has disclosed they are transgender…has or may have a serious chronic medical condition or physical disability.”

There are others.

Neither the Bill nor its explanatory notes provide any further guidance on the intended meaning of “personal characteristics”. The use of the term “characteristics” means that each of the protected characteristics, as defined by the Equality Act 2010—age, disability, gender assignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation—may be caught by the provision. The Chair of the Joint Committee on Human Rights wrote to the Lord Chancellor on 8 April and asked the following question:

“Is the term ‘personal characteristics’ in the Bill intended to exclude pregnancy, motherhood…and age…to ensure guidelines that are consistent with…case law?”

The reply from the Minister on 24 April, which I have referred to, said:

“The Bill specifies that personal characteristics includes race, religion or belief or cultural background. However, this is a non-exhaustive list and personal characteristics is also intended to cover a wider range of characteristics, including sex, gender identity, age, physical disabilities and pregnancy status. Pregnancy, motherhood and age are therefore not excluded from the definition of ‘personal characteristics’”.

The explanatory notes state that the Bill does not affect Court of Appeal case law in circumstances where a pre-sentencing report is “necessary or desirable”. They then cite three cases, which are Thompson, on

“a woman who is pregnant or has recently given birth”;

Meanley, which involved young defendants; and Kurmekaj, where

“the defendant’s traumatic upbringing, vulnerability and the fact they had been a victim of modern slavery”

meant that a pre-sentence report should have been required. The explanatory notes make it clear that the Government do not intend to prevent the Court of Appeal or any other body from issuing guidance relating to pre-sentence reports from being framed by personal characteristics, other than ethnic, cultural and faith or minority community. That appears to indicate that they do not object in principle to such an approach.

The Minister’s letter makes it clear that the Government’s objection lies with the Sentencing Council taking such an approach. Why does the Bill take a non-exhaustive approach to the definition of personal characteristics? Are the Government willing to narrow the effect of the Bill so that only references to

“ethnic minority, cultural minority, and/or faith minority community”

will be deemed unlawful? Will the Government explain why they wish to make it unlawful for the Sentencing Council to produce guidance to require a pre-sentence report for a defendant with a physical or mental disability? Why are the Government willing to accept that the Court of Appeal can provide guidance on when a pre-sentence report is needed by reference to personal characteristics but not willing to accept the Sentencing Council doing the same thing?

I have one final question. The effect of clause 1 is to prevent the inclusion of guidance that is “framed by reference to” personal characteristics. Will the Bill prevent the Sentencing Council from making an indirect reference to personal characteristics through reference to either Court of Appeal case law or mitigating factors in a guideline relating to pre-sentence reports? Those are the only matters I wish to raise in relation to the amendments today.

I am concerned that there are ramifications to proposals in the Bill that have not been covered. It may be that those can be corrected in the other place, or it may be that matters have to wait until we have a sentencing Bill in the autumn. While I entirely understand the Government’s frustration with the Sentencing Council, I do not feel that this Bill is the solution to the problems that they have identified, whereas its consequences have been exaggerated in many respects. If we want a system that is not only fair and robust, but clear in dealing with when pre-sentence reports are needed, we need to return to this issue on a future occasion.

I have already recorded my support for the principle of this Bill, which is unfortunately necessary to uphold the principle of equal justice. I speak in support of amendments 3 and 4, which would further strengthen this legislation. Amendment 3 would give the Justice Secretary the power to prevent future errors of judgment by the Sentencing Council. It would require the council to secure ministerial consent before issuing any sentencing guidelines concerning pre-sentence reports. We should be clear that that is not a measure aimed at politicising justice. However, we must ensure democratic oversight of a body that has shown itself to be capable of committing a serious error of judgment, which led to the situation today. The reason why we are legislating is that the Sentencing Council’s guidance proposed treating offenders differently based on their ethnic, cultural or religious identities. That is wrong.

The Sentencing Council has at no point suggested treating defendants differently according to their ethnicity or religion. All it has tried to do is ensure that judges and magistrates have the maximum information.

The Sentencing Council says that if, for example, someone is a white, Christian male, they are less likely to benefit from a pre-sentence report than if they were a member of a religious or ethnic minority. I believe that that is wrong.

Does the hon. Member know that any defendant before the courts who has no previous convictions, despite the seriousness of the offence, is entitled to a pre-sentence report?

I am grateful to the hon. Member for his intervention. As a former solicitor, I am familiar with that provision, and I agree that any defendant who has not yet received a custodial sentence should have the benefit of a pre-sentence report. However, imagine two criminals who both have a criminal record, but one is a member of a religious or ethnic minority and one is not. The guidelines propose treating them differently, and that is not justice.

Is the fact not that the sentencing guidance said that a pre-sentence report would normally be considered necessary, and then went on to talk about race and religion? Making those distinctions immediately apparent in sentencing guidance, which could mean that a white Christian male would be treated differently if they committed the same offence as someone of a different ethnicity, is the fundamental problem.

Indeed. I am grateful to my hon. Friend for making that point; the point I wish to make to the Committee is that all defendants should be treated equally. It should not be a matter of whether or not they are a member of an ethnic or religious minority. The Sentencing Council did not withdraw the guidance on principle, and it did not acknowledge its error. It was forced to backtrack only after public and political pressure, largely from the shadow Justice Secretary, my right hon. Friend the Member for Newark (Robert Jenrick). Even then, the council continued to defend the policy’s rationale in private communications to the judiciary. That is not accountability—it is evasion. That is precisely why amendment 3 is so vital. We cannot allow this to happen again, and Parliament must have a say when guidance threatens the impartiality of our legal system. Amendment 4, which addresses the content of sentencing guidance itself, is equally important. The amendment would make it illegal for sentencing decisions to consider a defendant’s group identity, particularly in reference to historical discrimination that has no bearing on their individual case. Current bail guidance from the Ministry of Justice already advises courts to consider the trauma suffered by individuals whose relatives experienced racism or cultural discrimination. It even refers to “important historical events” and their supposed differential impact on specific ethnic or cultural groups. That approach undermines the principle that people should be judged as individuals, not as members of a group. Amendment 4 would draw a clear legal line: mitigating factors in sentencing must relate directly to an individual’s actions and circumstances. Inherited identity or injustices not experienced by a particular convicted criminal should not be relevant to the sentence passed by the court. Race, religion or cultural background should not determine whether someone is sent to prison, and it should not determine whether or not someone should benefit from a pre-sentence report. The Lord Chancellor has argued that the current Bill allows her to “move at pace” to reverse the worst aspects of the Sentencing Council’s proposals, but this is not just about moving fast; it is also about ensuring that we never face this situation again. Amendments 3 and 4 are essential if we are serious about protecting the most basic principle of a free society, which is equality before the law. Without them, the Bill addresses the symptoms, but not the cause. As such, I urge the Committee to support those amendments and reaffirm our commitment to equality before the law.

I entirely agree with Members who are making the case that we should all be equal before the law. The problem is that the figures show that that is not the case, and it has not been the case for decades. If we look at the statistics for the numbers of people in prison, black people make up 12% of the prison population, yet we only make up 4% of the general population. That tends to raise the concern that we are not equal before the law across the whole custodial and criminal justice system. I remember that years ago, before some Members were in the House, you could not say anything about institutional racism in the police force and how black people were treated by the police. It took Stephen Lawrence and the Macpherson inquiry to get politicians and people who speak for the state to even acknowledge that there was such an issue as institutional racism in the police force.

15:15:00

My concern about the debate we have had about these guidelines is that, for short-term political advantage, we are putting forward a hurried Bill that carries the risk of undermining the Sentencing Council and indirectly undermining the judiciary. I do not believe that that is in the interests of our legal system. I remind the Committee that the guidelines were put out to consultation and there were 150 respondents, only four of which made any reference to the guidelines on ethnic minorities that are so upsetting Members on both sides of the House. Since then, 20 organisations, including the Centre for Women’s Justice, Amnesty International and the End Violence Against Women Coalition, have written to the Lord Chancellor to say that the consequences of ditching the guidelines could be dire. Among other things, they contain detailed advice on sentencing pregnant women and the parents of very young children. I repeat that the guidelines do not dictate the sentence. They only say that there are instances—where the defendant is young, or where they are a pregnant woman—in which we want the maximum information.

What is problematic about this debate and this legislation is that it has been framed as if the real conflict is between politics and the role of our criminal justice system. I would say that the real issue underlying this legislation—I know this is not a view that is shared—is how seriously this House, and Ministers in particular, are prepared to take the proven history of racial discrimination in our criminal justice system, and not just pay lip service to it but do something about it. The poor Sentencing Council is scarcely made up of radicals; it is a group of very senior judges. However, like anybody with any connection to the criminal justice system, those judges know that there is an issue of institutional racism in the courts. In the mildest possible way, they were trying to make a suggestion through their guidelines that might help to ensure that everybody is treated the same.

As I said at the beginning of my speech, I believe everybody is not treated the same, and people outside this Chamber will not understand how so many Members, including so many Ministers, are trying to claim that we are all treated the same. If we want to hold our criminal justice system up to the light—if we want to show people that we as a House are concerned with making sure that the system is fair and is seen to be fair—we should accept the guidelines that have been put forward by the Sentencing Council.

I associate myself with every single thing that the Mother of the House has just said, because I could not possibly live up to it. I genuinely believe that this Bill will undermine efforts to ensure that equality before the law is a reality for everyone. It flies in the face of expertise and of the painstaking, authoritative work of the Sentencing Council —a rightly independent body run by, and for, the judiciary. This is a strange and populist Bill that is undermining and delaying good, well-evidenced independent guidelines for effective sentencing that would have made our justice system more fair, rather than less. I will start my objections to clauses 1 and 2 standing part of the Bill—I am essentially opposing the Bill as a whole—by commenting on the process. We have before us a single-page Bill that in its specificity and intent cannot but bring to my mind how the current President of the United States is using executive orders to interfere intrusively and intricately in the rightly independent decision making of other bodies. This is a micro Bill that micromanages. I worry what else we might see from this Government if such an example is set today. On Second Reading, the shadow Justice Secretary was not shy of telling us about his next targets, which include the long-standing “Equal Treatment Bench Book”. The hon. Member for Hammersmith and Chiswick (Andy Slaughter) has outlined other guidelines that might be immediately affected if we pass this Bill today. My second objection is about the substance of the Bill, which is primarily contained in clause 1. I cannot believe that Ministers and shadow Ministers are unaware that achieving fair and equal outcomes does not mean treating everyone exactly the same. That principle is so fundamental that I think I learned it through the round window. I cannot believe they are unaware that systemic racism and unconscious bias are real things that still affect people at every stage of the criminal justice system in the United Kingdom in 2025. They must be aware that the good practice that we put together must mitigate those things, or else it will compound them. I do not believe that the Government as a whole think that the findings of the independent Lammy review of 2017 are untrue, or that they and a wealth of other evidence did not demonstrate the need for guidelines of this sort to provide information to help mitigate the impact of systemic racism and prejudice. Yet here we are, being asked to vote for legislation that essentially bans this evidence and these principles from being part of independent judicial guidelines.

My concern and that of Opposition Members is that the guidance gave examples where pre-sentence reports would “normally be considered necessary” and picked out an identity of a religion or a minority, thereby entrenching racism back into the system. That is the very aim that the hon. Member purports to not want to see. That is the fundamental argument that the Government and the Opposition are putting forward. We do not want to see this situation made worse.

This is—

Will the hon. Member give way?

Yes, of course.

Just to respond to the point that the hon. Member for Hinckley and Bosworth (Dr Evans) has just raised, the guidelines did not pick out race and ethnicity. In fact, they listed a number of circumstances in which a pre-sentence report might be considered appropriate, such as someone facing their first custodial sentence, someone who is under 25, someone who is a woman, pregnant, a primary carer or a dependent relative, someone who has said they are transgender or someone who may have addiction issues. Far from the Sentencing Council picking out race and ethnicity, that was only one in a long list of circumstances in which it suggested a pre-sentence report might be appropriate.

To return to the intervention from the hon. Member for Hinckley and Bosworth (Dr Evans), it is difficult for some to realise that with these guidelines, the definition of “normal” has flipped away from the male, the white, the Christian and the majority to shine more of a light on people who are parts of minorities and might have experienced systemic problems leading up to the sentencing decision. That is the point of the guidelines. That is how we act in an anti-racist way. It is how we put together policy that mitigates the great problems that the Mother of the House, the right hon. Member for Hackney North and Stoke Newington (Ms Abbott), has outlined and we know well. In contrast to this rushed Bill, the process that led to the now suspended new Sentencing Council guidelines was excellent: the document was consulted on widely; the Justice Committee looked at it; and it was given the green light by a Conservative Government, of which the shadow Justice Secretary was a member. Before I am intervened on, I am aware that a small change was made, but in essence the same document has come forward and the same principles were enshrined in the document that was proposed and approved. There was basically consensus that more use of pre-sentence reports should be made for people suffering from systemic injustices, that particular groups might be in greater need of them, and that judges should be permitted and encouraged to ask for such reports for those groups in more circumstances. I want to talk about another group who will suffer from the delay caused by the Bill suspending the guidelines. I do not know when we will get new guidelines, but there will be more harm to women, families and children, who were all given more specific focus in the new—now suspended—guidelines. I have worked for some years on the problems and injustices facing women in the criminal justice system. I am concerned about the serious consequences that will come from any delay to these long overdue changes to further widen the use of pre-sentence reports and to make those reports easier for these groups. There will be serious consequences not only for too many people with these characteristics or circumstances—however we define it—but for wider society too. Will Ministers tell us about the impact of this delay on women, families, pregnant people and other groups named? When will we get new guidelines that include them? How many people will be harmed in the meantime? This delay has already taken some weeks. Some Members will be familiar with the seminal 2007 Corston report about women with particular vulnerabilities in the criminal justice system. Incidentally, that document reminds us in its introduction: “Equality does not mean treating everyone the same.” The Sentencing Council guidelines were about to help plug a gap that still remained in terms of addressing the recommendations and themes of the Corston report. Indeed, in its commentary, the Sentencing Council rightly points to deeply concerning evidence of this problem. I am aware of difficulties judges have had in justifying delays and adjournments to go and get pre-sentence reports. The old guidance pushed for often impossible same-day reporting back from the Probation Service and cautioned against adjournments. With this delay to the new guidelines, will it be 2027—20 years after Corston—before the old guidelines are fully removed? How many women might be harmed in the meantime? As far as I can see, the shadow Justice Secretary has scored a major win today, seizing this issue to stage another culture war ambush against another minority. Instead of standing by judges and by important principles we have all known for a long time—instead of simply allowing these guidelines to be trialled while the concerns being raised were addressed calmly—this Government have essentially put an executive order-style Bill before us now for its remaining stages. There was not even time on Second Reading for opponents like me to point that out. I am sorry, but I believe that this Bill represents nothing less than a rushed and extraordinary capitulation by this Government to hard-right propaganda. People will suffer injustice as a result. It is profoundly worrying to see the Government legislating in this manner, micromanaging justice in ways that are led by—let’s face it—dog whistles, rhyming slogans and disingenuous propaganda. I will support new clause 1, but I sincerely hope that other Members will join me in voting against this Trumpian Bill and showing our respect for the independence of judges and magistrates on these matters. It is vital that we do something today to stand up for evidence-led policy, judicial independence and genuine equality before the law.

Let me begin by drawing Members’ attention to my entry in the Register of Members’ Financial Interests; I am a member of the Bar. I will align my comments with those of the Mother of the House, the right hon. Member for Hackney North and Stoke Newington (Ms Abbott), and the hon. Member for Brighton Pavilion (Siân Berry). The Bill, and the amendments, do not in reality tackle two-tier justice in this country; in fact, they risk entrenching it. Our justice system is founded on a principle that we all claim to uphold—fairness and equality before the law—but today we are being asked to support legislation that fundamentally undermines that principle. Let me be absolutely clear. This is not a matter of opinion. Lord Justice William Davis, the chair of the Sentencing Council, has written candidly about the issue. He has said, for example, that defendants from minority ethnic backgrounds are statistically more likely to receive harsher sentences than their white counterparts for a similar offence. That is not the opinion of politicians or pressure groups, but a warning from within the senior judiciary itself. The Bill ignores that reality. Worse still, it undermines one of the very tools designed to correct it: the pre-sentence report.

15:30:00

Let us remind ourselves what a pre-sentence report is, and what it is not. It is not the sentence itself. Sentencing decisions are rightly governed by separate judicial guidance, based on culpability, harm caused and established sentencing ranges. Those guidelines remain in place. What the pre-sentence report does is help the court to understand the background and circumstances of the offender—information that is needed to establish effective pathways to rehabilitation, particularly when the offender has experienced issues such as mental health challenges, learning difficulties or lifelong trauma.

The current guidelines for pre-sentence reports were very carefully revised with the input of not just senior judges but leading academics and practitioners—experts in criminal justice who understand the complexities and systemic disadvantages that many offenders face. In the House, we routinely rely on expert testimony to shape our policy, whether it concerns the NHS, education or the environment, and rightly so. In this case, however, we are doing the precise opposite: rejecting expert opinion, dismissing data, and ignoring lived experience.

Let me offer an analogy, or a parallel, with health disparities. According to Public Health England and the Stroke Association, black African and Caribbean men over the age of 55 are almost twice as likely to suffer a stroke as white men of the same age. That is not speculation; it is a clinical fact. If the NHS were to implement a targeted programme to deliver early stroke prevention for that group, not a single person in this Chamber would call it a two-tier health system. We would call it evidence-based care. We would call it a fair and proportionate response to a known disparity. So why, when it comes to justice, are we so afraid to apply the same logic?

From a medical perspective, there would be a genetic predisposition. Is the hon. Gentleman seriously suggesting that people would, on a genetic basis, find themselves affected by the law purely because they were black? The comparison he has just made is exactly that, from a medical standpoint. I do not think he would really make such a suggestion, and I would certainly be against that position.

The hon. Gentleman has made his point, but as a criminal practitioner who has frequented courts over the last 20 years, I have seen disparities. I have seen sentencing which, in my view, was not fair. Lived experiences among certain communities are just as important as those of other minorities, whatever their backgrounds. Ultimately, who has decided that this is an important element that needs to be taken into account in the sentencing guidelines? This went through all the consultation under the last Government. People had seen it, and agreed to it. It did not raise a concern back then, so why should it now? Addressing inequality is not the same as creating inequality. It is, in fact, the only way in which to ensure real equality—to ensure that justice is not just blind in theory, but fair in practice. I know some will argue that we need to understand the root causes of disparity, and they are right: that longer-term work is essential. However, while it is going on we must act in the present. We must allow the experts to do their jobs and support the guidance that they, not we, have developed through years of experience, research and consultation. This Bill is not just misguided; it is regressive. I cannot and will not support legislation that sidelines expert insight, ignores data and compromises the principles of fairness that we all claim to defend in the name of political convenience. Justice must not only be done but be seen to be done, and right now the communities that face this disparity will no doubt be concerned about the Government’s approach.

First, I acknowledge that disparities in outcomes in our judicial system are a real issue and merit serious attention. I recognise the work of the Lammy review in 2017, as well as the conclusions of the Ministry of Justice’s 2020 report, “Tackling Racial Disparity in the Criminal Justice System”, which found disparities in how people from minority ethnic groups are treated in the judicial system. It is important that these issues continue to have the focus that they merit. However, I am glad that the Bill has passed its Second Reading and that we are progressing through its remaining stages today. I am firmly of the view that it is not for the Sentencing Council to make policy decisions on this matter, for those are the domain of politicians and must remain so. The Government should be able to make political decisions and implement them, and the ballot box is the right place for us to be held to account. What I find refreshing about the continued passage of this Bill is that we are showing that politicians do not have to be jelly-like in the face of blockages to their desire to make political decisions. At the same time, I support the unamended passage of the Bill, because it finds a way to thread the needle with a targeted intervention. Amendment 3, tabled by the shadow Secretary of State for Justice, goes too far and would undermine the independence of the Sentencing Council.

My hon. Friend refers to blockages. How can he describe Members of this House, and people in the community who are trying to stand up for a fair and just criminal justice system, as blockages?

I do not think that anyone in this House is a blockage—far from it. The point I am making is that I believe that this House should be the place where political decisions are made, and that politicians should make decisions about important things that matter to people in this country. It is my view that the Sentencing Council is an important body. Crucially, however, it is not political, and I think that if the guidelines had gone through, it would have undermined the important principle of equality before the law. That is a political decision, and Members of this House hold different opinions, but it is for us to contest them in this place. I am glad the Government are making sure that we can make progress on the things that we believe need to be pushed forward for the British people, and I hope that the Bill will pass unamended today, because the precise changes that it proposes would prevent sentencing guidelines from being changed in ways that undermine equality before the law. I do not think that the amendments tabled by the Opposition are necessary, because they take things too far. With this Bill and much else besides, it is time for us to show that moderate politics, which is the politics of this Government, does not have to be like soup—weak and watery, and impossible to hold on to—but can instead be the politics of action and delivery. I welcome the continued passage of this Bill and urge Members to vote for it today.

I call the Liberal Democrat spokesperson.

I made the Liberal Democrat position on this very short Bill, and on this issue more widely, abundantly clear in the last debate that we had on this matter: we believe in equality before the law, we believe in the rule of law, and we believe that no one is above the law. That is why we believe that anyone facing the prospect of a custodial sentence should be the subject of a pre-sentence report. We believe that the state has that duty before dispensing its power to deprive someone of their liberty. There is no world in which judges and magistrates having more information about an offender, whoever they are, and their circumstances is a bad thing. That is why it is an injustice that the use of pre-sentence reports had fallen from 160,000 in 2015 to just 90,000 by 2023, which is a cut of 42%. That has left judges and magistrates with fewer resources and insights than ever with which to go about their work. Less informed sentencing means less satisfactory sentencing outcomes. It means more reoffending, more victims and more turmoil, and that is unacceptable. That is not justice. This is a product of the under-investment in our Probation Service—it compiles the reports—which was gutted under the Conservative Government. I therefore welcome the fact that the Minister, in his closing speech on Second Reading, agreed with me that “the debate should be about how we move to universality of pre-sentence reports, not about rationing.”—[Official Report, 22 April 2025; Vol. 765, c. 1019.] I will come to new clause 1 shortly.

The hon. Member will be aware that any sentencing magistrate or judge can request a pre-sentence report, so I would say that his use of the word “rationing” is inappropriate.

I do not know whether the hon. Member has read the Sentencing Council’s summary of the responses to the draft guidance that was in consultation under the Conservative Government, but it paraphrased magistrates and judges as saying that driving the universality of pre-sentence reports would be challenging in the light of the limited resource for the Probation Service and of the court backlogs. I would suggest that he consult that document to see the phrases used by those legal professionals.

How much would universality cost? Have the Lib Dems calculated how much it would cost?

If the hon. Member for Bridgwater (Sir Ashley Fox) was making the point that these reports should exist come what may, the cash should be ringfenced and earmarked for the use of judges and magistrates to request them, but he and the hon. Member for Hinckley and Bosworth (Dr Evans) cannot have it both ways. We know that if we best tailor a sentence to whether it will result in somebody not reoffending—if we best match the sentence to an offender—we can spend to save. If we can reduce reoffending by ensuring that people get the appropriate sentence, we will keep people out of our crumbling prisons who do not need to be there because they will not reoffend in the first place. We can spend to save. I regret that this issue has become a political football and one that is sowing the seeds of division. Plainly and simply, this is about the shadow Justice Secretary attempting to hijack our criminal justice system for his own political ends. So desperate is he to score political points that he uses his platform in this House to undermine judges by name, in the full knowledge that they cannot respond and that there is a formal process by which judicial complaints can be investigated and addressed. So desperate are the Conservatives to score political points that they paint judges as activist villains and are working to undermine public confidence in them just because the shadow Justice Secretary does not agree with their rulings.

I would expect the Liberal Democrat spokesperson to at least acknowledge that such references are to judges in their capacity as leaders of the Sentencing Council, not to judges sitting in individual cases. That is an important distinction to make when parliamentarians comment on their conduct.

I refer the hon. Member to the comments the shadow Justice Secretary made at the last Justice questions—I think the hon. Member was not in attendance for that—when he named a specific judge and made a critique of or complaint about them outside the formal processes.

Judges have been vilified, as have others sitting on the Sentencing Council, by Members of this House. Does the hon. Member agree that, if there is to be any vilification, it should be of the Conservative Members who formed the previous Government, who held the consultation and agreed to the guidance?

I do not agree that vilification is the right approach from any side of the argument. This debate should be conducted with respect and courtesy, and I feel that that was missing from some of the comments I just referred to. Absolutely, there must be accountability. Indeed, the previous Government were held accountable in huge respect at the general election, where they suffered the biggest defeat in their history. So desperate is the shadow Justice Secretary to rise to the top of our democracy that he is prepared, in the ways I have described, to undermine our democracy itself.

15:45:00

Turning to specifics, as other hon. Members have referred to, the Bill and its amendments are rushed, knee-jerk and not the way to make policy about people’s liberty or our constitution. Why not negotiate with the Sentencing Council, now that the immediate emergency has subsided? To my knowledge, based on my engagement with the Ministry of Justice, Ministers and officials, the question of how long they would be prepared to pause before the implementation of the guidelines has not been asked. Why not wait for the Gauke review to report and ensure that the issue is explored comprehensively and that wider consultation takes place? Why not comprehensively address what is already a two-tier justice system, as hon. Members on the Benches behind me and the Mother of the House, the right hon. Member for Hackney North and Stoke Newington (Ms Abbott), have referred to? As the Lammy review found, people from ethnic minority backgrounds are more likely to serve longer sentences for the same crimes than those who are not from ethnic minority backgrounds. It is disappointing that there is no provision in the Bill to consider that. If the Government insist on passing the Bill, we urge them to embrace our calls for an independent review of pre-sentence reports to be conducted within two years, as per new clause 1.

I hope the hon. Member was listening to my speech when I talked about the harm that might be caused by the delay in bringing in the really excellent parts of the new guidelines that might help women and families. Are the Liberal Democrats asking for a delay, or would they like to support bringing in the parts of the guidance that are agreed as soon as possible?

One problem with the proposals is that consultation has been minimal. They come from a rushed place. They come from a place of responding to a culture war. We are voting on people’s liberties and we need to consider the issues in great detail before responding, not in a knee-jerk way. What I can say, and what I have discussed with Members, including the Lord Chancellor, is that, for example, in the guidance on pre-sentence reports, the circumstances of victims of domestic violence, modern slavery and so on should be considered. As I said at the very beginning of my speech, on pre-sentence reports we should lean toward a presumption of universality rather than one of rationing, so that for all the groups and individuals that have just been mentioned, and more, judges can access a pre-sentence report. We make the call I have just made not only because we have grave concerns about the impact of the proposed changes, but because we remain steadfastly committed to evidence-based policy making. Against the backdrop of cynical culture wars and leadership manoeuvres, it is more important than ever for the Government to assess the outcomes of this policy, with assessments based on statistics, data and evidence as opposed to dogma and ideology. To conclude, we must not dance to the tune of the populists or the culture war fanatics, or undermine our legal institutions. As such, our position has not changed since last time and we will act accordingly. We will defend our judicial system and its independence, but we reject short-term reforms that fail to address the wider issues of disproportionality at play.

I call the shadow Minister.

I rise to speak in support of amendments 3 and 4 in my name and in the name of the shadow Secretary of State for Justice, my right hon. Friend the Member for Newark (Robert Jenrick), and of Conservative colleagues. As MPs from across the House have made clear, the draft guidelines produced by the Sentencing Council would have led to an unacceptable two-tier justice system in which defendants were treated differently on the basis not of their crimes, but of their racial, cultural or religious identity. In fact, the record will show that two-tier justice did exist for several hours, because this issue was managed so shambolically that the guidance came into effect ahead of its formal withdrawal. That is not justice—it is a betrayal of the fundamental principle of equality before the law. It would have happened under the watch of this Labour Government and this Lord Chancellor but for the intervention of the Opposition, and in particular the shadow Secretary of State for Justice. This Bill is necessary, but it is not sufficient. Instead of acting decisively to restore public confidence, after the Labour Government have been dragged to this Chamber to act at all, they now bring forward a half measure—a meagre response that falls short of what it should be. That is why the Opposition have tabled two important amendments. Amendment 3 would ensure that in future, sentencing guidelines on pre-sentence reports cannot simply be issued by the Sentencing Council without democratic oversight, and would instead require the consent of the Secretary of State before coming into force. Why is that now necessary? The Sentencing Council has proven itself not just in the initial measures it proposed, but in its attitude and response towards parliamentary and public scrutiny, to be unable to sustain public confidence in its work in this area. It is one thing for a public body to possess operational independence and to seek to exercise that independence on a day-to-day basis; it is quite something else for a public body to choose not to exercise good judgment and make use of that independence to act with restraint in the face of widespread Government, Opposition, parliamentary and public concern. While they do, of course, have their merits, the actions of the Sentencing Council have brought to life the potential pitfalls of unelected quangos that are deaf to the concerns of the people who pay their wages and the politicians who represent them. While this whole affair has no doubt been humiliating for the Lord Chancellor and the Government, the damage to public confidence in the leadership of the Sentencing Council is just as great. Despite what the hon. Member for Eastbourne (Josh Babarinde) said in his remarks on Second Reading, the Sentencing Council did not agree to pause the implementation of the guidelines to allow for a period of reflection—it outright refused to do so. He has misunderstood the sequence of events. The council paused only because we would have otherwise entered into a constitutionally unsustainable situation where people were being sentenced in the courts, with guidelines being legislated against in Parliament through emergency legislation. It was that direct threat alone that caused the council to pause and demonstrated its lack of judgment. I am afraid that we must therefore act more broadly to constrain the Sentencing Council in future, pending any wholesale changes that may be forthcoming. That is why the shadow Secretary of State put forward a Bill that would have taken the necessary steps to return accountability of the body through the Lord Chancellor while wholesale reform could be undertaken. Labour chose to oppose that Bill. Today, it is out of scope for the Opposition to seek to introduce a similarly wide amendment, and we are therefore restricted to seeking to at least restore accountability where we can in this field. The amendment would require that guidelines on pre-sentence reports drafted by the council must be expressly approved by the Secretary of State before they come into force as definitive guidelines—a basic safeguard of democratic accountability, ensuring ministerial oversight on sensitive sentencing matters. Without our amendment, history may repeat itself: the same council will be free to bring forward ideological frameworks that Ministers will be powerless to stop before the damage is done. Had these guidelines gone unchallenged, we would have tilted sentencing based on identity politics, undermining public confidence in the entire system. Our amendment would create a crucial safeguard, ensuring that no future set of guidelines in this field, at least, could bypass ministerial accountability. I encourage those on the Government Benches who have made clear that they wish to see accountability restored across the work of the Sentencing Council to vote in support of amendment 3; doing otherwise would make clear that they are unwilling to follow through on their concerns with action. Amendment 4 would make clear that sentencing guidelines on pre-sentence reports must not include consideration of a defendant’s status as part of a group that has experienced historical or intergenerational trauma. Why is this necessary? It would be deeply wrong to allow collective historical grievances to influence the sentencing of an individual today. This area is the latest frontier of identity politics, with the public being told that what should be given disproportionate focus in all sorts of domains—that what matters more than what is happening today, with the whole variety of challenges facing people of all creeds and colours—is, in fact, the past. Sentencing must focus on the actions, culpability and direct personal circumstances of the defendant before the court, not on sweeping assumptions based on historical events. We are not able in this Bill to legislate across all the workings of the criminal justice system as much as we might like to. The events of the past few months have shown that what has happened with these guidelines was not a one-off. There is a creeping, systemic attempt to inject identity politics into our judicial processes, bail decisions, probation, and even training materials. If we do not confront this now, it will embed itself deeper and deeper into the foundations of our system. It is fundamental to the rule of law that justice looks to the individual, not to the group. It is fundamental that we deal in evidence, not in ideology. Taken together, our amendments are designed to strengthen this Bill, to ensure that it is not merely a reactive measure, but, in this narrow area at least, provides lasting protection of the principle that justice must be blind, and must be seen to be blind. The public expect justice to be equal, not preferential. Our amendments will go further in helping to secure that. We are in this Chamber today because the Lord Chancellor was not paying attention, and was then humiliated by the recalcitrant leadership of an unelected body turning its face against parliamentary and public concern. The Government should have acted decisively and immediately and we provided them with an opportunity to do so, but they failed to take it. Even now, we are faced with a Bill that does not do the full job. Our amendments are closing the gap between what the Lord Chancellor is offering and what is necessary—decisiveness in place of timidity. I urge the whole House and the Government to support them.

It is a pleasure to serve with you in the Chair, Mrs Cummins. I wish to thank hon and right hon. Members for the points that have been made and the amendments that have been discussed, which I shall respond to in turn. I shall speak briefly to each clause and then remind us of why we are here debating this Bill. In the last Parliament, the Sentencing Council consulted on a revised imposition guideline, which was due to come into effect on 1 April. The revised guideline includes additional guidance on when courts should request pre-sentence reports. It notes that pre-sentence reports will “normally be considered necessary” for certain offenders, including those from an ethnic, cultural or faith minority. The “normally be considered necessary” is replaced with “may be particularly important”, which the previous Government very much welcomed. This Government note that a pre-sentence report is necessary. They agree that disparities exist in the criminal justice system. The reasons for that are unclear, but this is a matter for the Government, accountable to Parliament and to the ballot box, to address. In effect, the revised guideline could have led to judges deciding whether to request a pre-sentence report based on an offender’s faith or the colour of their skin. The Lord Chancellor has been clear that this would be unacceptable, as it risks differential treatment. Singling out one group over another undermines the idea that we all stand equal before the law—a principle that has been in the foundations of our justice system for centuries, and that is why she acted immediately and quickly. By preventing the Sentencing Council making guidance on pre-sentence reports with reference to personal characteristics, this Bill helps to ensure equality before the law. Clause 1 amends section 120 of the Coroners and Justice Act 2009. It provides that sentencing guidelines may not include provision framed by reference to different personal characteristics, including race, religion, belief or cultural background. Therefore, any existing guidelines that make reference to different personal characteristics will cease to have effect and the Sentencing Council is prevented from making such provisions in guidelines in the future. The changes made by this clause prevent the Sentencing Council making policy about when pre-sentence reports should be obtained that risks differential treatment before the law, and which could undermine public confidence in the criminal justice system. The sentencing code is clear that courts should obtain pre-sentence reports unless, in the circumstances of the case, it is unnecessary. The clause does not affect the independent judiciary’s ability to make decisions based on the personal circumstances of an individual offender, or determine where pre-sentence reports are necessary or desirable. Nor does it stop the Sentencing Council from advising, in general terms, that pre-sentence reports are sought in cases where the court would benefit from an assessment of an offender’s personal circumstances.

Pre-sentence reports, as the Minister has set out, are important in considering punishments that can address offending behaviour and help reduce the likelihood of reoffending. But, very often, probation is stretched so thin that officers do not have time to complete them. What will the Minister do to ensure that, where a pre-sentence report is required, probation has the capacity to do that important work?

16:00:00

My hon. Friend echoes much of what the hon. Member for Eastbourne (Josh Babarinde) picked up on earlier. Probation is a significant part of the landscape. That is why we are onboarding 1,300 more probation officers over the next year. The Chair of the Justice Committee, my hon. Friend the Member for Hammersmith and Chiswick (Andy Slaughter), raised issues about the impact of the guidelines on existing guidelines. We expect that other guidelines will be affected by the Bill, including offence-specific guidelines related to mitigating and aggravating factors, which set out guidance about pre-sentence reports for specific cohorts. We will continue working with the Sentencing Council on the implementation of the Bill. We have had constructive discussions and will continue to do so. As my hon. Friend the Member for Hammersmith and Chiswick referenced, the Bill’s explanatory notes point out, existing precedent is not changed where the courts have determined that pre-sentence reports are necessary or desirable. Such cases include: Thompson, where the Court of Appeal recently emphasised the importance of reports 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; and Kurmekaj, where the defendant had a traumatic upbringing, a vulnerability and was a victim of modern slavery. The Bill narrowly focuses on the issue at hand, putting beyond doubt the principle that we all stand equal before the law of the land. Clause 2 is concerned with details about how the Bill will be enacted. The Bill will apply to England and Wales only, and its measures will come into force on the day after it passes. The Bill may be cited as the Sentencing Guidelines (Pre-sentence Reports) Act 2025 once enacted. I thank the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright) for tabling his amendments and for the very thoughtful and comprehensive way in which he dealt with them. Amendments 1 and 2 would replace the term “personal characteristics” with “demographic cohort” to describe the type of provision about pre-sentence reports in sentencing guidelines that the Bill will prohibit. The Government have considered the proposed change to the wording very carefully and would like to take the opportunity to briefly explain the Government’s approach. The Government’s objective is to help ensure equality before the law so that offenders are treated according to their own particular circumstances and not by virtue of their membership of a particular group. To ensure that the Bill prevents sentencing guidelines about pre-sentence reports including provision framed by reference to any specific personal characteristics of an offender, we have used the term “personal characteristics”. The Bill sets out that personal characteristics include race, religion or belief, or cultural background. However, this is not an exhaustive list. We accept that personal characteristics and personal circumstances have, over the years, been elided in different court judgments, and we are clear that it is intended to cover a wider range of characteristics including sex, gender identity, physical disabilities and pregnancy status. The right hon. and learned Member for Kenilworth and Southam has rightly noted that the term “demographic cohort” is used in the Bill’s explanatory notes. However, the use of the term was not intended to narrow the definition of personal characteristics, and I believe it does not, though I note that he believes that it might do. Rather, it is a different term used to describe individuals who share certain personal characteristics.

I accept that the Minister is trying to give us clarity, so for the purposes of clarity is it the Government’s view that all personal characteristics can also be described as personal circumstances?

No, that is not the Government’s view. “Personal characteristics” is a term that is understood and applied in other contexts, whereas “demographic cohort” is a term that, on balance, the Government feel is more imprecise and would ultimately need to be defined with reference to a group with shared personal characteristics. Therefore, I understand where the right hon. and learned Gentleman is coming from, but from the Government’s point of view, the amendments do not add anything to the drafting of the Bill and risk causing further confusion. As he pointed out in his helpful contribution, there is a danger of getting into detailed semantics, which probably does not help any of us.

I take on board the Minister’s warning, and I am not sure whether this will make it any better. I think he is saying that the term demographic cohort is a subset of personal characteristics, but personal characteristics are not the same as personal circumstances. Is that right?

If we had used the phrase demographic cohort, we would have to define what that means, whereas personal characteristics is a phrase that already has a level of definition and is therefore preferred by the Government. I turn to the similar issue raised by my hon. Friend the Member for Hammersmith and Chiswick. We carefully considered whether the Bill should be narrower than referring to personal characteristics—for example, an offender being from a cultural minority—but in the end we felt that was not helpful. As such, while I am grateful to the right hon. and learned Member for Kenilworth and Southam for suggesting alternative wording, the Government remain of the view that, having considered it carefully, the term personal characteristics is the most appropriate way of capturing the issues raised by the guideline.

Will the Minister clarify the point in relation to pregnancy? He said—it is in the explanatory notes—that it would be right for a sentencer to follow Thompson and order a pre-sentence report where a woman is pregnant or has recently given birth, but that, following the passage of the Bill, it will be incorrect for the Sentencing Council to make recommendations along those lines for sentencers to follow. I do not quite see the difference.

The Court of Appeal has made it clear, and, as my hon. Friend said, it is right to follow Thompson in those circumstances. While I am grateful to the right hon. and learned Member for Kenilworth and Southam for raising and rightly exploring this issue in Committee, I hope that he will not press the amendment to a vote. Amendment 3, tabled by the right hon. Member for Newark (Robert Jenrick) on behalf of the official Opposition, would require the Sentencing Council to obtain the Secretary of State’s approval before issuing any sentencing guidelines about pre-sentence reports. Again, I referenced the helpful words of the right hon. and learned Member for Kenilworth and Southam, who said we should tread carefully in this territory and that the separation of powers needs to be very much respected. Therefore, while carefully considering the case for mandating that the Sentencing Council obtain the Secretary of State’s approval, I am not persuaded that that is appropriate at this particular time. As the Lord Chancellor has set out, this case has highlighted that a potential democratic deficit. That is why we are currently assessing the Sentencing Council’s wider role and powers for developing sentencing guidelines, with recent developments and imposition guidelines in mind.

I gently suggest to the Minister that if there is a risk of a democratic deficit, surely the thing to do is to act now in the short term and unpick it later if he feels he has overreached.

We certainly do not feel that we have overreached. We are acting in a timely and effective way. As the debate has demonstrated, there are issues of detail that need to be properly explored. The Lord Chancellor has done the right thing in announcing a review that will have a look at things in proper time; that will take place. Given the special role of the Sentencing Council and the significant policy and constitutional issues involved, it is right that we take the time to consider whether more fundamental reform is needed, alongside considering wider recommendations that come out of the independent sentencing review. I am not convinced that it will be proper to deal with the issue now through this fast-tracked legislation, nor am I convinced that legislating in a piecemeal way would be helpful, noting that the amendment of the right hon. Member for Newark applies just to sentencing guidelines about pre-sentence reports when there may be other things that we need to look at. To be clear, we are keeping all options on the table and are willing to legislate further in a more comprehensive way if necessary. I therefore urge the Opposition not to press this amendment. Amendment 4, also tabled in the right hon. Member’s name, would prevent the Sentencing Council from framing sentencing guidelines about pre-sentence reports with reference to groups that may have experienced trauma from historical racism or discrimination. While we have carefully considered the case for adding this restriction to the Bill, we are not persuaded that it is necessary. We have taken a general approach in the Bill to preventing sentencing guidelines about pre-sentence reports from being framed by reference to any personal characteristic of an offender. The Bill specifies that personal characteristics include race, religion or cultural background, but that is not an exhaustive list. More widely, I appreciate that the right hon. Member for Newark has taken a keen interest in wider guidance across prisons and probation that touches on different experiences, including those specified in the amendment. The Government are absolutely clear on the need to ensure equality before the law. Wider work is going on to review relevant policy and guidance, and we will update practices where necessary. I therefore urge the Opposition not to press the amendment. New clause 1 would require the Secretary of State to arrange an independent review into the restrictions the Bill places on the Sentencing Council’s ability regarding pre-sentence reports, which are framed by reference to offenders’ different personal characteristics. I thank the hon. Member for Eastbourne for tabling the new clause. Although we have carefully considered the case for such a review and I agree that it is important to carefully think through what the Bill’s effects, I am not persuaded that a review is necessary because the direct changes made by the Bill are very limited in nature. To recap, the Bill helps protect equality before the law by ensuring no offender receives differential treatment regarding pre-sentence reports based on their personal characteristics. That reflects a fundamental principle that does not need to be reviewed. The Bill does that by restricting the powers of the Sentencing Council to issue sentencing guidelines about pre-sentence reports. It will prevent guidelines from, for example, creating a presumption around whether a pre-sentence report should be obtained based on an offender’s personal characteristics, rather than all the circumstances of the offender before the court. For the avoidance of doubt, this Government support the use of pre-sentence reports and we have publicly committed to creating more capacity in the probation service to ensure it is able to do the valuable work that includes preparing pre-sentence reports. We are also happy to continue to work with the hon. Member for Eastbourne on disparities in the criminal justice system and the use of pre-sentence reports more generally. We fully support the increased use of PSRs in our courts. PSRs include an assessment of the offender’s behaviour and the risk they pose, and the recommendations for sentencing options. It is a valuable tool, as many Members have said, in helping to ensure a sentence is tailored to an individual offender and their circumstances. Equality before the law is a fundamental principle of our criminal justice system. It is the Government’s policy and belief that that should be protected. I again welcome the contribution from the Mother of the House, my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott), supported by the hon. Members for Brighton Pavilion (Siân Berry) and for Birmingham Perry Barr (Ayoub Khan), to keep our feet to the fire on tackling disproportionality. I confirm again that this Government take very seriously tackling disproportionality in the criminal justice system. That is why the Lord Chancellor has commissioned a review of the data on disparities in the justice system to better understand the drivers of the problem. I know that my right hon. Friend does not need my encouragement to keep going on this one, so I look forward to her continuing to hold us to account as we move forward. I will also be clear on what the Bill does not do, to underscore its limited changes. Nothing in the Bill restricts the court’s pre-existing ability to request pre-sentence reports, nor the Sentencing Council from advising in general terms that a pre-sentence report should be sought where a further assessment of the offender’s personal circumstances would be beneficial to the court. The Bill does not affect Court of Appeal case law about the types of cases where pre-sentence reports are necessary or desirable, as we have covered previously. There is recent relevant case law covering vulnerable defendants, pregnant women and women who have recently given birth, and young defendants. Furthermore, the Bill will not prevent judges from requesting pre-sentence reports in cases where they ordinarily would, including in appropriate cases involving, for example, pregnant women, as well as those involving young people or domestic abuse. I welcome the comments from my hon. Friend the Member for Chipping Barnet (Dan Tomlinson) on those issues. With such considerations in mind, the Government do not consider the proposed review to be necessary. However, as the Lord Chancellor has set out, she is carrying out a review into the wider role and powers of the Sentencing Council, so I can reassure the hon. Member for Eastbourne that there will be further opportunities to discuss issues surrounding the Sentencing Council in the House. I therefore hope that he will withdraw the new clause.

I call Sir Jeremy Wright to wind up.

I think—in gratitude to all those who have spoken—that we have got to a place where the Minister has told the House that there is some territory, which at the moment is being described as “personal characteristics”, into which the sentencing guidelines may not trespass. That is not the same as specifically referring to someone’s personal circumstances, and is a broader area than the question of whether they are a member of a particular demographic group.

16:15:00

I simply say to the Minister that, before this Bill complete its progress, he and his departmental colleagues may want to clarify what specific territory the Sentencing Council cannot now construct guidelines about, so that we all—including the Sentencing Council—understand where we stand. I am grateful to him for the explanation he has been able to give today, and in consequence I am content to withdraw the amendment; I beg to ask leave to withdraw the amendment.

Amendment proposed: 3, page 1, line 7, at end insert—

“(2A) After subsection (7) insert—

‘(7A) In the case of guidelines within subsection (4) about pre-sentence reports, the Council must, after making any amendments of the guidelines which it considers appropriate, obtain the consent of the Secretary of State before issuing sentencing guidelines as definitive guidelines.

(7B) In any case to which subsection (7A) applies, the Secretary of State may—

(a) consent to the issuing of guideline as definitive guidelines,

(b) refuse consent for the issuing of guidelines as definitive guidelines, or

(c) direct the Council to issue the guidelines in an amended form as definitive guidelines.

(7C) Where the Secretary of State has consented to the issuing of guidelines under subsection (7B)(a) or has directed the Council to issue guidelines in an amended form under subsection (7B)(c), the Council must issue the guidelines as definitive guidelines in the appropriate form’.” —(Dr Mullan.)

Question put, That the amendment be made.

184|16:16|86|222|The House divided:|Question accordingly negatived.||0|0

Amendment proposed: 4, page 1, line 13, at end insert—

“(d) status as part of a group that may have experienced trauma from experiences of racism or discrimination—

(i) inter-generationally and relayed to the defendant, or

(ii) as a result of important historical events which may have had a greater impact on those from specific groups and cultures.”—(Dr Mullan.)

Question put, That the amendment be made.

185|16:30|88|226|The Committee divided:|Question accordingly negatived.||0|0

16:45:00

I beg to move, That the Bill be now read the Third time. Let me first take this opportunity to thank all Members of this House who have spoken in support of this important Bill. I am particularly grateful for the support expressed on Second Reading, as well as to all the hon. and right hon. Members who have contributed to this afternoon’s Committee proceedings. It is not yet a month since the Sentencing Council’s imposition guideline was due to come into effect. The Lord Chancellor followed up her concerns immediately with action. As Members from all parts of the House have acknowledged, had the Government not acted quickly to introduce this Bill, the guideline would have risked differential treatment before the law in this country. I put on record my thanks to the Sentencing Council and in particular its chair, Lord Justice William Davis, for the constructive conversations on this issue and for pausing the guideline while Parliament had its say, as it is doing today. I also thank officials who have worked on this Bill, including Andrew Waldren, Stephen Toal, Jack Hickey, James Metter, Clare Taylor, as well as the Bill manager, Katherine Ridley, and my excellent private secretary, Emily Brougham. This Government strongly support the use of pre-sentence reports, which judges are required by law to obtain except in circumstances where they consider such a report unnecessary. We also acknowledge that there are disparities within the criminal justice system that must be addressed. However, those are matters of policy, and it is right for the Government to seek a policy response to these issues. That is why we brought this Bill forward, and I commend it to the House.

16:47:00

It is a pleasure to speak on behalf of His Majesty’s Opposition on Third Reading, following on directly from the Committee of the whole House, where Government Members rejected our amendments to strengthen the Bill. We now know the strength of the appetite on the Labour Benches to tackle this challenge properly and comprehensively here and now: there is not one. In truth, we knew that already. The Government had an opportunity weeks ago to restore democratic accountability to the Sentencing Council through the private Member’s Bill of the shadow Secretary of State for Justice, my right hon. Friend the Member for Newark (Robert Jenrick). They rejected that opportunity, and earlier today they rejected even the more modest strengthening we proposed. That should not be a surprise. Labour has a Prime Minister who is first and foremost a lawyer, not a leader. He is a lawyer steeped in the philosophy of securing political change through legal activism. That is the very approach that the Lord Chancellor has been forced to bring in emergency legislation to curtail. That approach is why the appetite for proper action is so limited. The legislation before the House is a fig leaf to hide the truth that a Labour party led by Keir Starmer will always have to be dragged kicking and screaming to tackle the judicial activism that he has long championed—[Interruption.]

Order. The shadow Minister must be heard.

Thank you, Madam Deputy Speaker; they do not want to hear it. The root cause of the issue is that the Prime Minister appointed an Attorney General—the Government’s own Law Officer—who is steeped in judicial activism. The Prime Minister himself practised in a chambers that relished it and wholeheartedly supported its expansion case by case. For anyone interested in a treatise on the risk of this approach—from someone much more qualified than me, as I am sure the House will agree—I encourage them to listen to Lord Sumption’s Reith lecture. His analysis on the divide between matters that should properly be the domain of politics and matters for law could not be more pertinent. He said: “It is a vice of some lawyers that they talk about law as if it was a self-contained subject, something to be examined like a laboratory specimen in a test tube, but law does not occupy a world of its own. It is part of a larger system of public decision making. The rest is politics. The politics of ministers and legislators of political parties, of media and pressure groups, and of the wider electorate.” Lord Sumption went on to say: “The Courts have developed a broader concept of the…law which greatly enlarges their own constitutional role. They have claimed a wider supervisory authority over other organs of the State. They have inched their way towards a notion of fundamental law overriding the ordinary processes of political decision-making, and these things have inevitably carried them into the realms of legislative and ministerial policy. To adopt the famous dictum of the German military theorist Clausewitz about war, law is now the continuation of politics by other means.” Be in no doubt: this whole sorry episode has been an exquisite further example of that mentality, this time from the Sentencing Council and its members as part of the wider judiciary establishment. The Lord Chancellor has failed to act decisively today. If she continues to refrain from taking decisive action, we will be here again and again, with the Opposition making sure, on each and every step of the way, that voters know where the sympathies of the Labour party and its leader lie: not with the ordinary, law-abiding citizen who expects equal treatment under the law and the democratically elected politicians of this country deciding on policy, but with activists and campaigning lawyers who want to wrestle control from them. The Bill is barely adequate—barely. We will not oppose it, because it is better than nothing—and at least it tells the public everything that they need to know about those who sit on the Government Benches, and about the mentality of the man leading them. Question put, That the Bill be now read the Third time.

186|16:50|214|3|The House divided:|Question accordingly agreed to.||0|0