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Shabana Mahmood has ordered a review of the powers of the independent body that draws up judges’ sentencing guidelines in England and Wales following claims that new rules discriminate against white men.
The lord chancellor wrote that she “will be reviewing the role and powers of the Sentencing Council” and will introduce new laws “if necessary” after the body recommended changes that would make the ethnicity or faith of an offender a greater factor when deciding whether to jail them.
The development, which will be seen as a threat to the independence of the arms-length body, comes in the wake of a growing political row. Robert Jenrick, the shadow justice secretary, has claimed that the rules are an example of “two-tier” justice.
In a letter to the chair of the council, Lord Justice Davis, Mahmood wrote: “I must make clear my displeasure at the direction that this guideline took in recommending differing approaches for those from ethnic minorities, cultural minorities and/or from a faith minority background.
“The guideline states that a pre-sentence report will normally be considered necessary for these cohorts. A pre-sentence report can be instrumental in assisting courts in the determination of their sentence. But the access to one should not be determined by an offender’s ethnicity, culture or religion.
“As someone who is from an ethnic minority background myself, I do not stand for differential treatment before the law like this.”
Mahmood asked Davis to reconsider the rules as soon as possible.
“I will also be considering whether policy decisions of such import should be made by the Sentencing Council and what role ministers and parliament should play.
“For that reason, I will be reviewing the role and powers of the Sentencing Council alongside the work of the Independent Sentencing Review.
“If necessary, I will legislate in the sentencing bill that will follow that review.”
The guidance, aimed at tackling bias and reducing reoffending, puts more emphasis on the need for pre-sentence reports, which give details of the offender’s background, motives and personal life before sentencing.
Under the change, which would come into force on 1 April, magistrates and judges would be asked to consult a pre-sentence report before determining whether to imprison someone of an ethnic or religious minority, as well as young adults, abuse survivors and pregnant women.
At present black and minority ethnic communities are over-represented at almost all stages of the criminal justice process in England and Wales, and are more likely to be imprisoned and receive longer sentences than white people.
The consultation process on the sentencing guidance concluded last February, when the Conservatives were still in government. An earlier version of the guidelines published last spring was criticised by the then justice secretary, Alex Chalk, as “patronising”.
Mahmood’s intervention will be seen as the latest move by Labour to appeal to right-leaning voters.
Sarah Jones, the industry minister, said on Thursday morning that the government was opposed to the guidance published on Wednesday.
“We disagree with this decision. I think it’s really important in the country that people are trusting in the justice system that we have and that means you can’t have a two-tier system, it has to be fair, it has to be equal to everybody and so we have asked them to think again about this guidance.”
The term “two-tier Keir” was used by critics, including Elon Musk, to accuse the prime minister of taking a disproportionately tough approach to the far right and anti-immigration rioters after the Southport stabbing attack.
Jenrick hassaid the sentencing guidelines created a “blanket approach”.
He told BBC Radio 4’s Today programme. “They say that if you’re a woman, if you’re trans, if you’re neurodiverse, if you’re an ethnic minority, if you’re someone from a minority faith group … then the judge is required to commission a pre-sentencing report, a report which in many cases leads to a lesser sentence.”
The guidance is aimed in part at stopping criminals who are pregnant or mothers of children under one year old from being imprisoned. According to the latest official data, there were 215 pregnant women in English prisons between April 2023 and March 2024, and 53 children were born to women in custody during the same period.
