Labour is pushing forward with plans for political oversight of criminal court sentencing in a bid to tackle “two-tier justice” allegations.
The independent Sentencing Council, which is led by the judiciary, was at the centre of a storm in March because of proposals that judges should seek a probation report when preparing to sentence someone of an ethnic, cultural or faith minority.
The new guideline was intended to address historic imbalances in the way some defendants are treated in the courts of England and Wales.
But Justice Secretary Shabana Mahmood opposed the move, suggesting it would create the impression of a two-tier system where minorities are given favourable treatment.
She introduced an emergency law in Parliament to block the Sentencing Council’s new guidelines from taking effect.
Now, the government is putting forward plans for all future work of the Sentencing Council to need sign-off from the Justice Secretary and the Lady Chief Justice.
Both the top politician at the Ministry of Justice and the most senior judge in England and Wales could independently wield a veto on proposals put forward by the Council.
Ms Mahmood claimed the move, in Labour’s Sentencing Bill which will be introduced to Parliament on Tuesday, will introduce “greater democratic and judicial oversight” of the Council’s work.
But she risks accusations that politicians are meddling in the work of the courts, while future reforms to sentencing could be blocked on ideological grounds.
The political row over the guidelines blew up when Shadow Justice Secretary Robert Jenrick highlighted the impending changes and levelled accusations of “two tier justice”.
The guidelines, which also suggested pre-sentence reports should usually be drawn up for women, young adults, and pregnant women, were first developed under the last Conservative government, without significant objection.
Ms Mahmood responded to the row by stating that she too opposed the new guidelines, and she was backed in the stance by Prime Minister Sir Keir Starmer.
Lord Justice Davis, who was chair of the Council at the time and died in June, refused to bow to government pressure, saying the updated guidelines did not amount to policy and were intended to ensure judges and magistrates have “as much information as possible” before passing sentence.
“Any judge or magistrate required to sentence an offender must do all that they can to avoid a difference in outcome based on ethnicity”, he wrote.
“The judge will be better equipped to do that if they have as much information as possible about the offender. The cohort of ethnic, cultural and faith minority groups may be a cohort about which judges and magistrates are less well informed.”
Under Labour’s plans, the Sentencing Council must also have its annual business plan signed off by the Justice Secretary.
The Ministry of Justice stated in its announcement of the new legislation that Ms Mahmood “is clear the Council should not be allowed to stray into setting policy without the direction of Parliament.”
It added: “The new powers will end a historic democratic deficit, ensuring Parliament’s legitimate role in setting the sentencing framework is recognised and upheld, while maintaining and strengthening judicial and democratic oversight.
Ms Mahmood commented: “Individual sentencing decisions will always be the responsibility of the independent judiciary – and this is something I will staunchly defend.
“However, policy must be set by parliamentarians, who answer to the people.
“Government and Parliament have a legitimate role in setting the sentencing framework. It is right that we now have greater democratic and judicial oversight of the direction of the Council’s work and the final guidelines they publish.”
Allegations of “two tier justice” have dogged the government since the riots that broke out last summer after the Southport murders.
The Sentencing Council’s thwarted reforms came after the landmark Lammy Review found evidence of widespread disadvantage in the criminal justice system against defendants from black, Asian, and ethnic minority backgrounds.
