Can the justice secretary ‘over-rule’ the Sentencing Council?

The justice secretary Shabana Mahmood has today written to the Sentencing Council to object to new sentencing guidelines, due to come into force in England and Wales at the beginning of April. 

The new guidance gives greater emphasis to the importance of pre-sentence reports (which provide the court with additional information about an offender) in sentencing decisions, and sets out that a pre-sentence report should be considered “necessary” for members of certain groups. 

Writing on X (formerly Twitter), Ms Mahmood said: “Today’s updated guidelines do not represent my views or the views of this government. 

“I will be writing to the Sentencing Council to register my displeasure and to recommend reversing this change to guidance.”

She added: “There will never be a two-tier sentencing approach under my watch.”

In a further post this afternoon Ms Mahmood said she had written to the Council “to express my strong opposition to its newly published guidelines, which recommend different treatment based on ethnicity, culture and faith.”

Shadow justice secretary Robert Jenrick has claimed the changes would make prison sentences less likely for certain individuals, such as ethnic minorities or members of minority faith groups. This is rejected by the Sentencing Council, which says pre-sentence reports “are not an indication of sentence”.

Some of the media coverage of the issue implies that Ms Mahmood has the power to prevent the guidelines coming into force. The Financial Times report for example was headlined “UK justice secretary to over-rule new sentencing advice over ‘double standards’”.

But under current rules, no such changes can be directly enforced by the government. The Ministry of Justice and the Sentencing Council both told Full Fact they believed the FT headline was inaccurate, with a Sentencing Council spokesperson adding: “The Sentencing Council is independent, and the Council decides what to include in our work programme independently of government or Parliament.” We’ve approached the FT for comment.

It’s been suggested that in order to overrule the Sentencing Council the government would have to change legislation, allowing it to veto the council’s plans. Shadow justice secretary Robert Jenrick appeared to acknowledge this, telling the BBC Radio 4 Today programme: “If we need to change the law, we should do so.”

In her post this afternoon, Ms Mahmood said she was “reviewing the Sentencing Council’s role and its powers” and added: “If new laws are required, I will not hesitate to legislate.”