Lord Burnett of Maldon (CB)

My Lords, I am extremely grateful to the noble Baroness, Lady Hamwee, for that suggestion. I hope not to detain the Committee for long. I declare some interests at the outset. When I was Lord Chief Justice, I was president of the Sentencing Council and thus responsible for appointing all its judicial members, with the concurrence of the Lord Chancellor. The Lord Chancellor appointed all the lay members with my concurrence. Like the noble Baroness, Lady Chakrabarti, I was present at the Second Reading debate but did not speak. The noble and learned Lord, Lord Thomas of Cwmgiedd, spoke, and we considered that, for the sake of all those there, one former Lord Chief Justice was probably enough. In one way or another, all the amendments in this group seek to confine or define what is meant by the term “personal characteristics” in the Bill. As all noble Lords will have noted, the term is not defined in the Bill and, in accord with various noble Lords who have tabled amendments, my strong view is that it needs a definition. Although there is no definition in the Bill, the Explanatory Notes try to provide some further explanation. They use the term “demographic cohort” as a synonym for personal characteristics, and they contrast “personal characteristics” with “personal circumstances”, but neither of those terms is in the Bill or defined. In the Second Reading debate, the Minister said: “The Bill states that personal characteristics include race, religion or belief, and cultural background, but these are examples and not a comprehensive list. ‘Personal characteristics’ is intended to include a wide range of characteristics, such as sex, gender identity, physical disabilities and pregnancy status”.—[Official Report, 7/5/25; col. 1625.] The amendment in the name of the noble Baroness, Lady Hamwee, explores what might be meant by “cultural background”, which is, of course, a term that came from the Sentencing Council’s draft guideline. Like others, I find it an extremely elastic and elusive concept. However, the inclusion of pregnancy status as a personal characteristic illustrates the problem caused by the lack of a statutory definition. A few minutes later, in the same debate, the Minister said: “A particular concern was raised by the noble Baroness, Lady Jones, about how the Bill may impact on women—in particular, pregnant women … To be clear, nothing in the Bill prevents judges requesting pre-sentence reports for pregnant women, nor will it affect Court of Appeal case law, which states that a pre-sentence report is desirable in the case of pregnant or postnatal women”.—[Official Report, 7/5/25; cols. 1626-27.] With the greatest of respect to the Government, this exposes a degree of incoherence. The Government’s view is that pregnancy is a personal characteristic. It follows that, if this Bill passes in its current form, it would be unlawful for the Sentencing Council to include it in a guideline on pre-sentence reports; and that it would thus be unlawful for the Sentencing Council to give guidance that reflects judgments of the Court of Appeal. Is that really what the Government are trying to achieve? The right reverend Prelate the Bishop of Gloucester, who sits directly opposite me, has an amendment to deal with that extraordinary outcome. Although the Government have shied away from defining “personal characteristic” in the Bill, they have not had such inhibition in correspondence both to the Constitution Committee, on which I serve, and to all Peers. In a letter to all Peers, in a long section headed “Definition of ‘personal circumstances’”, the Minister explains that the European Court of Human Rights uses the term when considering, for the purposes of Article 14 discrimination, whether a person enjoys another status; the noble Baroness, Lady Chakrabarti, has already referred in passing to some of the jurisprudence on that matter. However, if I may say so—in complete agreement with the Government—that term in the Strasbourg case law has no crisp definition, and it does not do so for very good reasons. The Minister refers in his letter to jurisprudence in the House of Lords, where, in the context of Article 14, my noble and learned friend Lord Neuberger of Abbotsbury—I am glad to see that he is in his place—and my noble and learned friend Lady Hale provided assistance with the meaning of “personal characteristics”. In his letter, the Minister approbates the interpretation of my noble friend Lord Neuberger, who said that “the concept of ‘personal characteristic’ … generally requires one to concentrate on what somebody is, rather than what he is doing or what is being done to him”. If it is the Government’s view that those wise words of the noble and learned Lord, Lord Neuberger, provide the kernel of a definition for the term, “personal characteristics”, why on earth is it not in the Bill? It matters because the correspondence goes on to suggest that the observations of both the noble Lord, Lord Neuberger, the noble and learned Baroness, Lady Hale, and also, historically, Lord Steyn, would be a legitimate aid to construction to assist the Sentencing Council. I emphasise that it would not be a legitimate aid to construction should the matter ever find its way to a court—that is to say, the noble Lord’s letter, rather than the observations of the noble and learned Lord, Lord Neuberger. That comment, if I may respectfully say so, perhaps illustrates a faint misunderstanding in the Government. It is not only the Sentencing Council that needs to understand with clarity what the term “personal circumstances” means. All those who respond to consultation put out by the Sentencing Council must also be able to understand what it means. In these fevered times, it is not impossible that there might be a challenge to what the Sentencing Council has put in a draft guideline, and which might emerge in a final guideline. So, a court will have to—at least perhaps—interpret this phrase. It is with that in mind that I support all or any amendments that seek to bring some clarity to what “personal circumstances” means in this context. Without a definition, I fear that the Government are storing up trouble for the future.