'Two-tier' sentencing row to be tackled by emergency law change this week

30 March 2025, 19:12

A new Bill will be introduced to Parliament this week aimed at overturning the Sentencing Council guidance, it is understood.

The latest guidance says a pre-sentence report will usually be needed before handing out punishment for someone of an ethnic, cultural or faith minority, alongside other groups such as young adults aged 18 to 25, women and pregnant women.

It was created to solve the disparity in sentencing between ethnicities - but has been branded as "two-tier" policing by critics.

"We are moving as fast as possible to kill this," a senior government source told The Times.

The quango have "completely lost the plot," another source told the newspaper.

This comes as the Sentencing Council rejected demands by the Justice Secretary Shabana Mahmood to drop their “two-tier” sentencing rules in an escalating row between the judiciary and the Government.

One legal source told The Times the Council's approach was "cack-handed".

"There has long been a perception that ethnic minorities receive higher sentences from judges. It is a real issue. But the way the Sentencing Council has tried to address it has been totally cack-handed," they said.

"Their policy statement was extremely tactless and gives the public a misleading impression."

The source added that the guidelines were "not all that important" as judges didn't not usually take pre-sentencing reports into account.

"Many judges think the pre-sentencing reports are a waste of time since they inevitably end up as a piece of advocacy on behalf of the defendant.”

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Ms Mahmood is leading the Government's attempts to quash the guidance.

She warned "all options are on the table" to overturn the guidance after chairman Lord Justice William Davis concluded the new rules did not require revision.

The new Bill will have to go through the usual parliamentary process of being scrutinised in both House of Commons and House of Lords before it can become law, though ministers hope this can be done swiftly

The Government then plans to examine the role and powers of the Sentencing Council, an independent public body, in the longer term.

This could lead to further changes to the law from the summer, following Conservative former minister David Gauke's review of sentencing.

Among the changes being considered is a greater role for ministers or Parliament in scrutinising the Sentencing Council.

The fresh legislation has been revealed just a day after a Labour former justice secretary warned against such a move.

Lord Falconer, who served as justice secretary under Sir Tony Blair, told the BBC: "I wouldn't be in favour of emergency legislation before the consultation.

"The reason I'd be against emergency legislation at this stage is because I would take the view that the Government would get themselves into a very difficult position if every time they disagreed with the council's views, they had emergency legislation."

On Saturday, the first Labour MP, Jonathan Brash, MP for Hartlepool, said the quango should be abolished.

"It is a question of democracy. Clearly the decision of the Sentencing Council is completely out of step with the British people and with what elected politicians think," he told The Telegraph.

"For the council to say they are not interested in what the Justice Secretary has to say is unacceptable.

"There’s a more fundamental question here about who decides on behalf of the British people about how the country is run.”

"We can’t persist with a system where the Sentencing Council pushes forward guidelines that the democratically elected government doesn’t agree with."

The Sentencing Council for England and Wales is a non-departmental public body that develops sentencing guidelines, monitors the use of guidelines and reviews sentencing decisions.

Mr Brash added: "I can think of a number of MPs who are sympathetic to my position."

Party organisation Blue Labour wrote on X: "If the Sentencing Council won’t listen to democratically elected politicians, Parliament must legislate to shut it down.

"The principle of equality before the law is non-negotiable."

Justice Secretary Shabana Mahmood set out her concerns over the Sentencing Council's “two-tier” justice proposals in a hard-hitting letter published for the first time on Friday.

The council had come under fire after publishing new principles for courts to follow when imposing community and custodial sentences, including whether to suspend jail time.

The updated guidance, which comes into force from April, has been accused of introducing a “two-tier” system for requesting a person’s ethnicity, culture, faith and gender is considered in a pre-sentence report.

Ms Mahmood has warned that the body's recommendations are “corrosive” and “eroded public confidence”.

But Lord Justice William Davis, the head of the council, rebuffed her demands to change its guidelines in his response, also published on Friday.

Responding to the rejection, Ms Mahmood said: "I have been clear in my view that these guidelines represent differential treatment, under which someone's outcomes may be influenced by their race, culture or religion.

"This is unacceptable, and I formally set out my objections to this in a letter to the Sentencing Council last week.

"I am extremely disappointed by the council's response. All options are on the table and I will legislate if necessary."

Sir Keir Starmer has said he is "disappointed" in the Sentencing Council's refusal.

Figures from most sides of the political divide have hit out at the sentencing guidelines.

Shadow justice secretary Robert Jenrick said in the Commons earlier this month: "The new sentencing guidelines published alongside this statement will make a custodial sentence less likely for those 'from an ethnic minority, cultural minority, and/or faith minority community.