The Sentencing Council has caved to pressure and suspended plans for new guidelines which could have led to different sentences depending on age, sex and ethnicity, as ministers prepare to force through a law to overturn proposals.
The climbdown – hours before the guidance would have come into force – comes after a standoff with the Ministry of Justice which will use emergency legislation to override the guidelines, which had provoked claims of a “two-tier” justice system.
One official described it as a “total victory” for the justice secretary, Shabana Mahmood.
The new guidelines 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.
Mahmood had hoped to be able to pass a bill to stop the guidelines through parliament within 24 hours but was told it would be impossible to do so before the Easter recess.
The guidance was due to come into force on Tuesday, meaning there would have been a short, confusing period during which the guidelines would have applied before being made illegal. “Shabana has been working incredibly hard to avert this,” one source said.
The decision by the council to suspend the implementation of the guidelines will avert a potentially chaotic process where the new guidelines would have been in force for a few weeks.
The short bill, which will be presented to the Commons on Tuesday, will specify that sentencing reports “should not single out specific cohorts for differential treatment”.
Mahmood had hoped to get the bill through the House of Commons and Lords this week but the leader of the House of Lords, Angela Smith, is said to have raised concerns about using the government’s political capital to push a bill through so quickly given the likelihood of provoking anger from senior legal minds in the Lords.
Ministers were advised it could not be done before the Lords rose for recess but government sources said that Mahmood was determined not to allow the guidelines to come into force.
“The Sentencing Council have recognised that when elected politicians say it’s their job to make controversial policy, not unelected quangos, however respectable those quangos are, they mean it,” the source said.
“The UK’s first Muslim woman lord chancellor has fought to reassert and demonstrate to the public that parliament is sovereign and everyone is treated equally by the criminal justice system.”
Announcing the bill, Mahmood said: “These guidelines create a justice system where outcomes could be influenced by race, culture or religion. This differential treatment is unacceptable – equality before the law is the backbone of public confidence in our justice system.
“I will change the law to ensure fairness for all in our courts, and I’m grateful to the Sentencing Council for delaying implementation while parliament considers the bill.”
The Sentencing Council confirmed after a meeting with Mahmood on Monday that it “would not introduce a guideline when there is a draft bill due for imminent introduction that would make it unlawful. On that basis, the council, an independent statutory body, has chosen to delay the in-force date of the guideline pending such legislation taking effect.”
Starmer gave his backing to legislation to prevent the guidelines earlier on Monday. “I’m very disappointed in the response of the Sentencing Council on this issue, which is why we will now bring forward legislation,” he told GB News. “There’s no other option. So we will do that. We will fast-track it.”
Senior legal figures have expressed discomfort at how the situation has unfolded, with the guidance aimed at addressing some clear disparities in sentencing between white and non-white offenders.
Former lord chief justice Lord Thomas of Cwmgiedd told BBC Radio 4’s Today programme: “It’s obviously for parliament to decide what the law is, but these are difficult issues. The last thing anyone would want is politicians involved in deciding individual sentences.
“And the last thing the judges would want is deciding ultimately on penal policy, that is for the government.”
The suspension comes at the end of a breakdown in relations between Mahmood and the Sentencing Council. After the guidance was first published, Mahmood wrote to the chair of the council, Lord Justice Davis, calling for the change to be scrapped and insisting there would “never be a two-tier sentencing approach under my watch”.
Davis had suggested he would defy that pressure on Friday, however, saying the council had concluded “the guideline did not require revision” and blaming a “widespread misunderstanding” for the backlash.
He added in a letter to Mahmood: “The rule of law requires that all offenders are treated fairly and justly by judges and magistrates who are fully informed about the offences, the effect on the victims and the offenders. The section of the guideline relating to pre-sentence reports is directed to the issue of information about offenders, no more and no less.”
David said that it was guidance that judges must “do all that they can to avoid a difference in outcome based on ethnicity” and said they would 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.”
Mahmood has ordered a review into the role and powers of the council, which may also require new legislation, likely to be part of a wider sentencing bill due to be published after the sentencing review being undertaken by former Conservative justice secretary David Gauke.
A No 10 spokesperson said on Monday 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.”
He refused to rule out the Sentencing Council being scrapped. Asked why, the spokesperson said: “I’m just not going to get ahead of the work being done. We are not going to rush into ruling anything in or out. We need to look at the Sentencing Council and its role carefully, and any further changes will be set out in due course.”
A government source said they acknowledged there was still work to be done to address disparities in the justice system. “It’s clear that more needs to be done to both understand and address them but these guidelines would undermine equality before the law,” the source said.
