It was not quite at the eleventh hour – but it wasn’t too far off. The Sentencing Council has tonight decided to delay the introduction of so-called ‘two-tier guidance’ after being threatened with emergency legislation to block it by the government. The new guidelines, which had been due to come into force on Tuesday, would have required magistrates and judges to consult a pre-sentence report before deciding whether to imprison someone of an ethnic or religious minority, or a young adult, abuse survivor or pregnant woman.
Advocates of the move argued it would fix the disparity in sentencing between ethnicities. But critics claimed it would lead to criminals form minority backgrounds potentially avoiding jail by instead being handed more lenient community sentences. A stand-off developed between ministers and the 14-man Sentencing Council, which functions as an arm’s length body of the Ministry of Justice. Shabana Mahmood, the Lord Chancellor, announced plans this week to introduce emergency legislation to block the guidance after her initial letter to the council was scornfully rebuffed.
Tonight’s last-minute U-turn means this move will no longer be required – but there is no doubt the row has damaged relations between ministers and the Sentencing Council. Both the draft guidelines and the broader attitudes of the council have enraged senior figures within government. The body could now see its powers curtailed later this year, after Mahmood ordered a review into the role of the council. At today’s lobby briefing, a No. 10 spokesman told journalists that the government was committed to considering more broadly ‘the role of the Sentencing Council’, but added: ‘We’re obviously not going to rush that work and we will consider it carefully.’
There are two striking conclusions from this political row. The first is the optics of the council’s behaviour over the past fortnight. In the current political climate, there are few votes to be won by being resolutely pro-judge. In Sir Keir Starmer, the senior judiciary have just about the best friend that they could possibly hope to have. So it has been bizarre to watch the council adopt such a high-handed attitude to a first-year government that, given its majority, looks set to be in place until 2029. Given the hardening mood among some Labour MPs on ‘the rule of lawyers’, the initial response to Mahmood’s initial letter seems particularly ill-judged. Jonathan Brash, the new MP for Hartlepool, has called for the council’s abolition; others share this view privately too.
The second conclusion is the effectiveness of Robert Jenrick. The Shadow Justice Secretary was one of the first to pick up and run with the issue earlier this month. His rhetoric has been punchy and unlikely to win him many friends at the Inns of Court, suggesting that the ‘two-tier justice’ would turn judges ‘against straight white men.’ The government initially sought to embarrass the Tories by noting that in government they had supported a draft of these controversial measures. But Jenrick’s aggressive stance and willingness to take the fight to Labour – including beaming ‘two-tier Kier’ onto the MoJ – ensured he can credibly claim victory following the Sentencing Council’s U-turn tonight.
The hard yards of opposition can be a grim, messy and opportunistic business. But in both his vigour and willingness to embrace guerilla tactics, Robert Jenrick has shown he can rise to the challenge.
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