Sentencing is for judges, not politicians

An attempt by Conservative politicians to seize power from the judges was blocked by the government last Friday. This little-noticed move was the latest in a series of disturbing political attacks on the judiciary that began just over a month ago. 

At prime minister’s questions on 12 February, Kemi Badenoch told Sir Keir Starmer that a family of six from Gaza had applied to live in Britain under a scheme established for Ukrainians. ‘This decision is completely wrong,’ she said, ‘and cannot be allowed to stand.’

The Conservative leader had based her question on a report in that morning’s Telegraph. Starmer’s officials should have told him the case had been decided on human rights grounds, not under the misapprehension that the family were entitled to resettlement under a scheme for Ukrainians. It was Home Office policy that applications for entry clearance outside the immigration rules should be made using the Ukrainian application form. But the prime minister took the bait.

‘Let me be clear,’ Starmer said. ‘I do not agree with this decision… It is the wrong decision… The home secretary is already looking at the legal loophole that we need to close.’

Nothing more was heard from the Home Office. But the lady chief justice told the Lords constitution committee two weeks later that inaccurate reporting had resulted in ‘extraordinarily serious security threats’ to judges. ‘To imply, for example, that a Palestinian family was allowed to settle in this country under the Ukrainian family scheme is simply, wholly wrong,’ Baroness Carr added.

Learning nothing from the incident, Shabana Mahmood allowed herself to be wound up by her Conservative shadow in the Commons earlier this month. Robert Jenrick told the justice secretary that a new sentencing guideline would ‘make a custodial sentence less likely’ for those from an ethnic minority, a cultural minority or a faith minority. This was a gross oversimplification of the requirement for judges and magistrates to obtain pre-sentence reports before sentencing defendants from 10 broad categories.

Mahmood immediately fired off a letter to Sir William Davis, chair of the Sentencing Council, addressing the appeal judge by his judicial title. She asked him to look again at the guideline and said she would be considering whether ‘policy decisions’, as she described them, should be made by ministers and parliament in future rather than by an arm’s-length body.

Davis replied robustly. ‘I have seen it suggested that the guideline instructs sentencers to impose a more lenient sentence on those from ethnic minorities than white offenders,’ he told the justice secretary. ‘Plainly that suggestion is completely wrong.’

After that, tempers cooled. MPs were told on Monday that the justice secretary had had a ‘constructive’ discussion with Davis. Mahmood had agreed to set out her position more fully in a letter that the council had promised it would consider before next month, when the guideline is due to take effect.

But Jenrick continued to pile on the pressure. A week ago, he introduced a private member’s bill that, if passed by parliament, would allow ministers to decide how long offenders should serve in prison.

At present, parliament sets maximum sentences and a few minimum sentences, though even these permit some judicial discretion. The Sentencing Council, which has a judicial majority, sets guidelines that courts must follow unless it would be unjust to do so.

Under Jenrick’s bill, the justice secretary could block a guideline or direct the Sentencing Council to issue it in an amended form. So long as the new guideline was within the statutory limits, it could be higher or lower than at present. The minister could presumably require courts to treat ethnic minorities differently from other defendants. Judges would have to comply with these ministerial guidelines unless it would be contrary to the interests of justice to do so.

The Sentencing Council (Powers of Secretary of State) Bill is supported by the opposition leader. But Jenrick’s bill was blocked by the government last Friday and stands no chance of being enacted.

It is fundamental to the rule of law that sentencing in individual cases is the responsibility of judges, not politicians. And if there is one person in government who is determined to ensure that ministers keep within their lanes it is the attorney general.

It is surprising therefore that Lord Hermer has not publicly commented on his colleagues’ errors. Apart from supporting the government’s bill to stop hereditary peers sitting in the Lords, he seems to have said nothing in parliament since January. Hermer postponed a high-profile human rights lecture he had been invited to give last week.

We need only look at events in the United States this week to see what can happen when the executive attempts to undermine members of the judiciary. Where are the law officers when we need them to defend the rule of law?

joshua@rozenberg.net