The Sentencing Council has refused a request from the Lord Chancellor to change guidance that prompted a row over “two-tier justice”.
Sir Keir Starmer said he was “disappointed” with the decision while Shabana Mahmood said “all options are on the table” and threatened to change the law if necessary.
The Sentencing Council said it will instead clarify language around new guidelines to judges relating to pre-sentence reports for ethnic minorities “in the hope that this would correct the widespread misunderstanding”.
Earlier this month the council published 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 1, says a pre-sentence report will usually be necessary 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.
Justice Secretary Ms Mahmood met Sentencing Council chairman Lord Justice William Davis and set out in a letter that Government policy opposes “differential treatment” based on race or ethnicity in the courts.
But in correspondence published on Friday, Lord Justice Davis said: “The council concluded that the guideline did not require revision.
“The council respectfully disagreed with the proposition that the list of cohorts in the guideline represented an expression of policy.
“In providing a list of cohorts, the council was and is only concerned with judges and magistrates being provided with as much information as possible.”
He said the council agreed any systemic issue relating to ethnic groups is a matter for policy, adding: “Any judge or magistrate required to sentence an offender must do all that they can to avoid a difference in outcome based on ethnicity.
“The judge will 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.”
Sir Keir previously said: “The Lord Chancellor is obviously continuing to engage on this, and we’re considering our response. All options are on the table, but I’m disappointed at this outcome, and now we will have to consider what we do as a result.”
Downing Street rejected suggestions that Ms Mahmood had been humiliated by the Sentencing Council’s refusal to back down.
“She has been in dialogue with the Sentencing Council throughout, she has made her views clear. As she said, all options remain on the table, and that includes legislating if necessary,” a Number 10 official said.
It comes after shadow justice secretary Robert Jenrick condemned the guidance and said unless the Government acts, “we will have two-tier justice under Two-Tier Keir (Starmer)”.
Conservative leader Kemi Badenoch had earlier called for Ms Mahmood to change the law and said the Conservatives “will back her”.
Ms Mahmood had said “there will never be a two-tier sentencing approach under my watch”.
She had asked for a wider clause to be used in the guidance and asked for all the cohorts listed under the pre-sentence report guidelines to be removed.
Reacting to the Sentencing Council’s response on Friday, she 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.”
