Keir Starmer has been battling to avert disaster in Britain’s prisons since he became Prime Minister. The jails crisis isn’t his fault – he inherited a mess – but his government’s handling of it has been far from reassuring. The Sentencing Bill, which arrives in the Commons this afternoon, is being billed as the medicine the justice system needs. Will it work?
It’s a shame the Lord Chancellor didn’t go a little further
After fifteen months of trying to stop jails running out of space, Labour’s Sentencing Bill is expected to introduce earned earlier release, a presumption against short prison sentences, and a huge expansion of community sentences and tagging. There will also be a much-needed £700 million boost for the probation service. The government believe that these changes, along with their prison building programme (described as ‘unachievable’ by the National Infrastructure and Service Transformation Authority), will save the prison system from collapse.
The Sentencing Bill has also provided an opportunity for the Lord Chancellor Shabana Mahmood to take back control of sentencing. In the Spring, there was a confrontation between Mahmood and the Sentencing Council over ‘two-tier sentencing’, in which the Council asserted that sentencing policy, not just individual sentencing decisions, should be determined by judges and ‘experts’, not ministers. At the time, Mahmood said that the proposed changes would create ‘a clear example of differential treatment’ and risked ‘undermining public confidence in a justice system that is built on the idea of equality before the law’.
That dispute ended in the Council being humiliated, with emergency legislation preventing the introduction of their new guidelines. Mahmood promised to ‘right the democratic deficit that has been uncovered’. Now, she is acting to ensure it doesn’t happen again.
At the heart of this row was an unanswered question: are we ultimately ruled by parliament, and ministers, or by judges and lawyers? On one side of the debate are those like Lord Hermer, the Attorney General, who believes that international law is sacrosanct. On the other side, are those like Mahmood, who said today that ‘policy must be set by parliamentarians, who answer to the people’. In order to achieve this goal she is introducing a new legal requirement for the Justice Secretary to approve any new Sentencing Council guidelines before they are issued. Mahmood is clear on why this matters; ‘Government and Parliament have a legitimate role in setting the sentencing framework,’ she says.
This is a much-needed reassertion of parliamentary and ministerial authority. The Sentencing Bill will also introduce ‘a requirement for the Council to seek approval…of its annual business plan’. The leash is back on, and the quango is being tamed.
It is worth noting that none of this will impact individual sentencing decisions. Judges will remain free to apply the guidelines as they see fit. As Mahmood said, ‘individual sentencing decisions will always be the responsibility of the independent judiciary – and this is something I will staunchly defend’.
Mahmood is generally agreed to be one of the most impressive and successful Labour ministers, handling one of the hardest briefs. Her instincts seem much sounder than many of her colleagues. Certainly, in her belief that sentencing policy should properly be set by parliament via legislation, she is right.
But Mahmood has left one risk in the new rules, which may pose trouble for her, or a future Lord Chancellor. Under the new law, the Chief Justice will also need to explicitly approve any new guidelines. This means, as the Ministry of Justice acknowledged this morning, that ‘if either oppose the guidance, it will not be issued’.
Under what circumstances might the Chief Justice oppose rules created by the Sentencing Council and approved of by the Lord Chancellor? It is, to be truthful, hard to imagine, but these powers given away by Parliament have a way of growing. Sentencing policy should be entirely at the command of parliamentarians and ministers. It’s a shame the Lord Chancellor didn’t go a little further.
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