With your permission, Madam Deputy Speaker, I will make a statement on sentencing in England and Wales. As the House will be aware, new guidelines from the Sentencing Council on pre-sentence reports have come under scrutiny in recent weeks, specifically on whether an offender’s faith or the colour of their skin should be a factor in their use. This is a question of huge import: whether we all stand equal before the law. That is an ideal that has underpinned justice in this country for centuries and an ancient right that each of us in this House has a responsibility to uphold. The new guidelines on the use of pre-sentence reports were due to come into force from today, but in recent weeks I have had constructive talks with the Sentencing Council and I am grateful to its chair, Lord Justice William Davis, for that engagement. As a result, I am pleased to tell the House that the guidelines have been put on pause while Parliament rightly has its say.
It is important to first understand how we got into this position. Under the previous Government, the Sentencing Council proposed changes to its imposition of community and custodial sentences guidelines, which are concerned with whether a judge should make a community or custodial order when sentencing an offender, and the thresholds for these disposals. When the courts are deciding whether the community order threshold is met, or the custody threshold is met, they are required by law to obtain a pre-sentence report unless they consider it unnecessary to do so. These reports provide more information to the court, helping to provide a greater understanding of the background and context of the offending behaviour. They are a tool at the disposal of judges. The guidelines provide further guidance to courts on how to approach the decision whether to request a pre-sentence report. In this instance, they help them to determine what sentence might best be handed down.
In general, I should be clear, I welcome the use of pre-sentence reports. In the last few months, I have created capacity within the Probation Service to ensure that it has more time for vital work such as this. But the new guidance, if it came into force, would encourage judges to request them for some cohorts of offenders and not others. Specifically, it notes that it would “normally be considered necessary” to request pre-sentence reports for ethnic, cultural or faith minorities. It is important to be clear about the impact that a pre-sentence report is likely to have in this instance: it is more likely to discourage a judge from sending an offender to jail. It is this that creates the perception of differential treatment before the law and risks undermining public confidence in the justice system.
A repeated theme of my engagement with the Sentencing Council over the guidelines has been the intention behind them. It was attempting to address very real inequalities that exist in our justice system—inequalities that are evident in the sentences that offenders receive. It is unclear why this happens, as the Sentencing Council acknowledges. There is no doubt that more must be done to understand the problem we face and to address it. Some measures are already taking place across our justice system to make it more representative of the public that it serves, such that it can deliver outcomes in which we can all have confidence, and I note that the proportion of ethnic minorities within the judiciary has risen from just 7% 10 years ago to 11% today.
While change can feel slow and must accelerate, my view is that despite the noble intentions behind these guidelines, in attempting to address inequalities in our justice system they sacrifice too much. They raise a serious question of policy: in the pursuit of equality of outcome for different religions and races, should we treat them differently before the eyes of the law and move so far away from an ideal that has underpinned justice in this country for centuries? On this, I am clear: all must be equal before the law.
I know there will be disagreement in this House with regard to the correct policy to pursue. There have been, as I have noted, differences of opinion among the Opposition. I expect that the shadow Secretary of State for Justice, the right hon. Member for Newark (Robert Jenrick), who opposes these guidelines, and the now shadow Transport Secretary, the hon. Member for Orpington (Gareth Bacon), who welcomed them while in office, have been having some robust conversations in recent days.
I doubt, however, that there is any disagreement that this is a question of policy. How the state addresses a systemic and complex issue is clearly the domain of policymakers. It is right that questions like these are discussed and debated here. It is right that the public can hold us to account for the decisions we take and that they can ultimately reward or punish us at the ballot box.
The role of judges is entirely different. They are concerned not with how policy is made but how it is applied. The independence of our judges to make those determinations is fundamental to our justice system. Over centuries they have built a reputation for fairness, making them world-renowned and respected. They are the embodiment of the rule of law in our country. To play that role, they must be able to make decisions on the facts without any outside influence. They must know they have the Government behind them, protecting them as they do that vital work. When I swore my oath as Lord Chancellor, I made a solemn pledge to protect and defend the independence of the judiciary, and I always will. But to do so, it is essential that the boundaries between what is policy and what is judicial decision making are clear. For that reason, the Government will today introduce the Sentencing Guidelines (Pre-sentence Reports) Bill. It is a tightly focused Bill. It does not interfere with the vital work of the council providing guidance to judges on how to sentence offenders. It addresses the issue of when a pre-sentence report should be ordered.
The Bill adopts a targeted approach. It does not prevent council guidance from advising in general terms that pre-sentence reports should be requested when judges need more information about an offender’s personal circumstances. It will remain the case, for example, that where an offender is a victim of domestic abuse, a judge can consider it in deciding whether to order a pre-sentence report. But it prohibits the council from making guidelines about pre-sentence reports with specific reference to the offender’s personal characteristics, such as their race, religion or belief, or cultural background.
The Bill will not affect the court’s existing duties to obtain a pre-sentence report in appropriate cases, nor does it change court precedent around them—like the recent case of Thompson, in which the Court of Appeal noted the importance of obtaining a pre-sentence report in cases involving pregnant women or women who have recently given birth; like the case of Meanley, where the court referred to the importance of pre-sentence reports in serious cases involving young defendants; or like the case of Kurmekaj, where the court emphasised the defendant’s traumatic upbringing, vulnerability and the fact they had been a victim of modern slavery as reasons why a pre-sentence report should be ordered. Judges will continue to request pre-sentence reports in cases where they ordinarily would—for example, those involving pregnant women or young people.
I accept that the Bill will, however, raise wider questions about the role of the Sentencing Council. The council does important work bringing greater consistency to judicial decision making, but we are here discussing a question of policy—a difficult, disputed and uncertain one at that. If the Government cannot determine national policy on the question of equality of treatment before the law, we have uncovered a democratic deficit. The Bill exposes that question but does not address it. The proper role of the Sentencing Council, and the process for making guidelines of this type, must be considered further, and I will do so in the coming months. It is right that this question is considered in greater depth, and should further legislation be required, I shall propose it as part of the upcoming sentencing Bill.
The Sentencing Council, although only 15 years old, holds an important position within the firmament of our justice system, and any changes must be made carefully and with due consideration. I am sure they will be discussed more in this House in the months ahead. The Government will today introduce the Sentencing Guidelines (Pre-sentence Reports) Bill. The issues it contains are of great consequence because the path to a more equal society can only be paved by equality before the law. Again, I thank the Sentencing Council for putting a pause on its guidelines while Parliament has its say. I believe that we must reverse them and reassert that no race or religion should receive preferential treatment before the law. The Bill we will introduce today will achieve that, and I commend this statement to the House.