Robert Jenrick’s victory over the Sentencing Council — James Heale is correct to call it that — is, more importantly, a victory for the new style of Toryism the shadow justice secretary is beginning to articulate. There’s no dressing it up: what the Sentencing Council proposed was the introduction of race-based differential treatment to England’s criminal justice system. Its new guidelines, suspended pending government legislation to render this aspect of them unlawful, state that a pre-sentence report (PSR) ‘will normally be considered necessary’ where a convict comes ‘from an ethnic minority, cultural minority, and/or faith minority community’. PSRs can lead to a less severe or non-custodial sentence, though this is not guaranteed. Supporters of the guidelines see them as a response to aggregate differences in sentences handed down to white and black or ethnic minority offenders.
The guidelines also encourage judges and magistrates to commission PSRs where an offender is female, transgender or aged between 18 and 25, but the prompt on race/ethnicity is especially offensive given the destructiveness of legal systems that practice racial discrimination, something many of us had thought well-established by now. The guidelines indisputably promote an approach to PSR commissioning based on immutable characteristics, or as Jenrick more snappily puts it, a ‘two-tier’ justice system.
As someone who writes in favour of criminal justice reform, I’m invariably at odds with Jenrick on penology, and it is with some discomfort that I find myself admiring the liberalism of the Tory justice spokesman. And not only his liberalism but his refusal to be cowed by the forces of legal progressivism, who have accused critics of ‘misunderstanding’, ‘headline-grabbing misconception’, and ‘spit and fury’; pettifogged over semantics, such as Jenrick saying the guidelines would ‘require’ courts to commission PSRs when they merely make them ‘normally… necessary’; and, in one case, begun their credentialed scolding with the sentence: ‘In echoes of last summer’s riots, the government is again being accused of enabling a “two-tier” justice system in the UK.’ (One wonders if guilt-by-association is grounds for a pre-sentence report.)
Jenrick has held firm against all this huffing and puffing to reassert a norm most of the public and almost all conservatives have come to expect in English courts: that every accused is tried and, if found guilty, sentenced as an individual and afforded equal justice under the law on that basis. Punishment should be without regard to immutable characteristics or demographics, and this can only be guaranteed if the judicial process is untainted by bias from start to finish.
I said Jenrick was articulating a new style of Toryism but really it’s an older style. Over the last decade or so, the Conservative party has begun to absorb aspects of progressive ideology. For example, if you’re a Tory displeased with Keir Starmer’s plans to introduce mandatory ‘ethnicity pay gap’ reporting for large companies, just wait till you find out which party he stole the idea from. For that matter, if you’re displeased with the Sentencing Council guidelines, just wait till you find out which government originally called them ‘welcome’.
Equity, the idea that individuals and groups are entitled to equality of outcomes, is not necessarily incompatible with conservatism. Tory leaders including Iain Duncan Smith, David Cameron and Theresa May have shifted their party away from the merit-based, economic opportunity liberalism espoused by Margaret Thatcher. But conservatism is a constellation of instincts, rather than a coherent philosophy, and the Conservative party could only travel so far along the equity path before it collided with the instincts of conservative Britain. Those instincts are firmly against distributing individual outcomes with regard to group characteristics, and especially so in the criminal law. Progressives might come to the conclusion that such people are racists — some progressives are permanently camped out at that conclusion — but this is because the progressive mind and the conservative mind define racism differently.
Progressives, who believe race colours all aspects of human affairs consciously and unconsciously, see racism in any disparity of outcomes. Conservatives, who believe race is incidental to personal character and social arrangements, regard racism as (intentional) disparity of opportunities. When a progressive says that justice requires race-based differential treatment in a procedurally neutral process, a conservative hears: ‘No, but this is good racism!’
How far Jenrick will go with his pushback against equity conservatism, I don’t know. (He could very well think I’m talking guff.) But there is a space in the political landscape for a party espousing those instincts that, a generation ago, were considered not only conservative but Conservative, among them individual rights, blind justice, equality of opportunity, institutional neutrality, and a healthy scepticism towards equity, identitarianism, and other radical concepts that flow from progressive ideology. Whether the Conservatives can be that party is an open question and it is the Conservatives who made it so with 14 years of indolence and self-harm. All political parties have wilderness years but the Tories might be the first to go through them while in power. They have forfeited the right to be regarded as the natural party for conservative-minded voters and will have to find a way to re-establish themselves as such.
Robert Jenrick is doing much of the heavy lifting on these efforts, especially on immigration and integration, where he is speaking in a voice that conservative voters recognise as their own but which they have heard less and less from the Conservative party since David Cameron’s 2005 takeover. Amusingly so since, until about two years ago, Jenrick was an undistinguished member of the post-Cameron Tory mainstream. Whether a conversion or a career move, Jenrick’s interventions have made him an asset not only to the Conservative party but to the immediate future of conservatism. Those of us more concerned with the future of liberalism across British politics should regard him as a foe, but one to whom we might, on occasion, have to give some grudging credit
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