Sentencing Council Guidelines

Question

15:39:00

Asked by

To ask His Majesty’s Government what steps they are taking in response to the guidelines recently issued by the Sentencing Council.

The Lord Chancellor has been clear about her concerns since the guidelines were published: that they risk differential treatment before the law. We asked the Sentencing Council to revise them and were disappointed by its refusal to do so. As a result, yesterday, we introduced legislation to address the very specific issue with this guideline. The Sentencing Council has put the guideline on pause while Parliament, rightly, has its say.

My Lords, will the Minister please tell the House, first, how can the proposed Bill justifiably be regarded as emergency legislation when, plainly, a non-statutory resolution is available? Secondly, will he tell us whether consideration was given to referring the issues to the Gauke sentencing review—which will report shortly—and, if not, why not? Finally, will he tell the House whether the Government have consulted the Women’s Justice Board, which the Minister himself chairs? Have they realised that the proposed definition of “personal characteristics” in the Bill is a recipe for repeated legal challenges; for example, as to whether “pregnant” or “postnatal” are proscribed definitions? I thank Joshua Rozenberg for those examples.

We believe that the guidelines represent a differential treatment before the law and that is why we oppose them. We asked the Sentencing Council to revise them and, as I said, it did not. The Lord Chancellor has introduced legislation to address this specific issue. The Sentencing Council’s guidelines were due to come into effect on 1 April, so it is right that we moved quickly on this and have introduced legislation to address the matter at hand. I am grateful to the Sentencing Council for the constructive conversations it has had with the Lord Chancellor. It paused the in-force date of the guideline until the legislation, which was introduced yesterday, takes effect. The Independent Sentencing Review that David Gauke is chairing is a much wider review of sentencing that is due to report in the coming months. We look forward to considering its recommendations carefully when they come out. On the Women’s Justice Board, which I proudly chair, I have spoken to several members about this and I am grateful to them for sharing their views. To be clear, judges will continue to be able to request pre-sentence reports in cases where they already would; for example, those involving pregnant women, young people or domestic abuse.

My Lords, in Scotland, the court is legally obligated to request a criminal justice social work report before imposing for the first time a custodial sentence on anyone, on an accused under the age of 21, and in many other circumstances, including specific sentences. The legal basis for such a report is set out in Section 203 of the Criminal Procedures (Scotland) Act 1995—legislation passed by this Parliament under a Conservative Government. In the 30 years since then, no one has ever alleged that Scotland has a two-tier justice system. Will my noble friend and his ministerial colleagues in the Ministry of Justice consider a similar revision of criminal justice law for the part of the UK for which they have responsibility?

I thank my noble friend for the question. I am sure he is aware that I am not an expert on Scottish law, as I know some other noble and noble and learned Lords are. However, our position is that the Sentencing Council’s guideline could lead to differential treatment before the law. That is why we have acted as we have. Any judge can still ask for a pre-sentencing report in any case where they consider it necessary.

My Lords, we are all committed to equal treatment, but there is a mass of evidence, including the Lammy review, that ethnic minority defendants are far more likely to be sent to prison than their white counterparts. So we already have a two-tier justice system. Thorough pre-sentence reports are the only robust way to address that, and that is what the proposed guideline is about. Instead of emergency legislation, can the Government not, even now, work with the Sentencing Council to reach a solution that addresses damaging rationing of pre-sentencing reports and ensures that the personal circumstances of defendants in vulnerable cohorts are fully considered?

Nothing in the Bill prevents judges requesting a pre-sentence report for pregnant women—it is normal practice for judges to request pre-sentence reports in cases involving pregnant women—nor does the Bill affect Court of Appeal case law, which states that a pre-sentence report is desirable in those cases. I believe that pre-sentence reports are very important, but they have declined in number considerably over the last 10 years. From 2013 to 2023, they declined by 44%. That is why we are putting extra resources into probation, recruiting more probation officers so that they have the time to produce high-quality pre-sentence reports.

My Lords, the Minister—perhaps the Minister of State for pouring oil on troubled waters—referred to the dialogue between his department and the Sentencing Council. But, as he knows, after the report became public on 5 March, that dialogue was far from helpful. The Sentencing Council pushed back hard on the suggestion from the Secretary of State for Justice that it had created a two-tier sentencing system. Therein lay the fundamental problem, which is that when the previous Labour Government created the Sentencing Council, they created a body that was not answerable to the judges or the Government. Does the Minister consider that that model is now compromised, as evidenced by recent events? Will his department address the issue of how sentencing guidance should be provided in future?

The noble and learned Lord is right to say that the Sentencing Council plays an important role in ensuring transparency and consistency in sentencing guidelines but I will not engage in the personal issues that he refers to. The Lord Chancellor is committed to reviewing the role of the Sentencing Council but it will take time to consider this carefully, so it is not appropriate for the Bill. For me, what is important is that we are proud of our judiciary and its independence, and the fact that, quite rightly, it is respected the world over.

My Lords, this disagreement is deeply disappointing. It does not come close to a constitutional crisis, because the Sentencing Council and the Lord Chancellor are seeking to achieve the same thing. Is the Minister aware that elsewhere in the sentencing guidelines there is wording that reminds judges that there is, in fact, evidence that more black, Asian and other ethnicity offenders receive an immediate custodial sentence than white offenders? Does he agree that if the Sentencing Council would back down and change the wording of the offending part, there would be no need for this legislation?

I thank my noble friend for the question. There is no doubt that more must be done to address inequality in the justice system, and the Lord Chancellor has commissioned a full review of the sentencing disparity and its causes. We are clear, though, that this is a matter of policy, which is why we are legislating on this. I am glad that the Sentencing Council has decided to delay the guidelines until this legislation has passed.

My Lords, does the Minister agree, given the substantial achievements of the Sentencing Council, particularly in achieving consistency, that now is the time for quiet reflection in recognising that achievement?

I thank the noble and learned Lord for his wise words, and for recognising that we could all do with a quiet period. We are all looking forward to the Recess in 48 hours’ time.

My Lords, I declare an interest in the Free Speech Union and apologise for accidentally omitting to do so at Oral Questions yesterday. It was my first ever Oral Question, and I hope noble Lords will forgive the omission. I want to ask the Minister for his assurance about another two-tier justice risk; namely, the work that the Government have embarked upon to come up with an official definition of Islamophobia that they then recognise and incorporate into guidance. Can he reassure the House that that definition will not be incorporated into any advice given by the College of Policing to the police in England and Wales, nor in any official advice produced by the CPS, nor in advice given to the Courts and Tribunals Service, and that once the definition has been adopted, it will mean that anti-Muslim hatred is not treated any differently by the police, courts or tribunals from anti-Sikh hatred, anti-Hindu hatred or, indeed, anti-Christian hatred?

I thank the noble Lord for his second question. As I have said previously, the Lord Chancellor is committed to doing a full review of policies to ensure that none of them contradicts the important principles of equality before the law.