Amid the outrage over the recommended changes by the Sentencing Council, each side of the political aisle has reacted with condemnation and attempts to offset the fears of ‘two-tier sentencing’ and undermining the principle of equality under the law. On the Conservatives’ side, Robert Jenrick has won an impressive victory by challenging the legality of the recommendations, resulting in the Sentencing Council delaying the introduction of the new guidelines.
On the Government’s side, Justice Secretary Shabana Mahmood has pushed for a reconsideration, and the Government has announced plans to introduce legislation to ‘override’ the recommendations. The legislation would ‘surgically’ remove the part of the guideline that suggests judges should consider the background of offenders from minority groups before deciding their sentence.
Of course, there is a much simpler answer: abolish the Sentencing Council.
Created in 2010, shortly before the general election of that year, the Sentencing Council is a non-departmental body that recommends the guidelines for judges when sentencing convicted criminals, and its existence is owed to the Coroners and Justice Act (2009). Before this, the Sentencing Guidelines Council was established by the Criminal Justice Act (2003) after the Halliday Report, published by the Home Office in 2001, recommended a ‘modernisation’ of the criminal justice system.
The predecessor body to that body, the Sentencing Advisory Panel, was in turn created by the Crime and Disorder Act (1998), though this was a weaker institution, as its recommendations were submitted to the Court of Appeal for consideration. Gradually, throughout the Blair years, we have seen the creation and subsequent empowerment of a body that has superseded the state’s own capacity to determine how criminals are sentenced. When this is considered alongside the Constitutional Reform Act (2005), which modified the position of Lord Chancellor by removing the office’s ability to set the maximum sentence, the democratic control of the public over how criminals are punished has eroded, and with it, the principle of legal equality in Britain.
This means the Sentencing Council as a body is a product entirely of legislation, and could be just as easily repealed, rather than adjusted or tinkered with through new legislation.
But this must be accompanied with a warning. When repealing legislation, the tendency is often to replace that legislation with other, equally bad legislation. The Sentencing Council is an example in itself, but the attitude of ‘replacementism’ has seeped into British political life in such a way that the Conservative-led governments of the last 14 years toyed with the idea of repealing the Human Rights Act (1998) and replacing it with a Bill of Rights.
Such a tendency is tempting, but it misses the key tradition of the British constitution: it is not primarily a legal constitution, but a political one. In such an arrangement, the debates over the deeply-held beliefs of the public and how they should guide governance is settled through political mechanisms, with elections being the primary method, allowing for a flexible and revisionist approach to how certain aspects of public life are regulated. In a legal constitution, the capacity to settle these debates is siphoned away from the public and towards bodies such as the Sentencing Council but, just as importantly, judges and other, similarly unelected powers.
Richard Bellamy’s 2007 ‘Political Constitutionalism’ puts it succinctly when he writes that legal constitutionalism, while a valid approach to governance, can veer away from the important principle of the protection of minority rights, and begin to neglect the protection of majority opinion. The Government should not seek to solve this poor state of affairs with more bad legislation, but simply repeal the relevant components of the Coroners and Justice Act, specifically Section 4. Doing so would signal that this Labour are just as serious about redemocratising justice as they are about redemocratising the NHS, following the announced abolition of NHS England. It may just begin the process of reversing two-tier justice that is poisoning Britain.
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