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Ministers have criticised plans to make the ethnic background of offenders a greater factor in determining whether to jail them, saying they amounted to a “two-tier system” of justice.
Sarah Jones, the industry minister, said the government was opposed to guidance published on Wednesday by the Sentencing Council for England and Wales, which is an independent arms-length body.
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 overrepresented 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.
Asked about the new guidelines on LBC radio, Jones said: “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.”
Shabana Mahmood, the justice secretary, said overnight that she would write to the Sentencing Council to “register my displeasure and to recommend reversing this change to guidance”.
She added: “As someone who is from an ethnic minority background myself, I do not stand for any differential treatment before the law, for anyone of any kind. There will never be a two-tier sentencing approach under my watch.”
Ministers’ reference to “two-tier justice” will raise eyebrows. 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.
Robert Jenrick, the shadow justice secretary, has also strongly criticised the guidelines and said he was concerned they meant a “blanket approach” where women and ethnic minorities would be less likely to get custodial sentences.
“What these sentencing guidelines do is adopt a blanket approach,” Jenrick 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.”
Speaking to Times Radio, Jenrick said that under the changes “essentially Christian and straight white men amongst other groups will be treated differently to the rest of society”.
The consultation process on the sentencing guidance concluded last February, while 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”.
Jones told Sky News that “ministers were not told or part of the decision-making for this”.
“We must have a fair justice system. Everyone must be treated equally. We must not have two-tier systems of justice … I don’t think anybody would disagree with that. So we are asking the Sentencing Council to look again at this guidance that they put out.”
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 mothers in custody during the same period.
