The government is set for a showdown with the judiciary this week over controversial sentencing guidelines due to come into force on Tuesday.
The Sentencing Council, the independent body that sets out guidance for courts in England and Wales, recently published new principles on how offenders from minority backgrounds should be sentenced.
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The new guidance says that a pre-sentence report will “usually be necessary” before handing out punishment for someone of an ethnic, cultural or faith minority – alongside other groups such as young adults aged 18 to 25, women and pregnant women.
Why has the guidance been controversial?
The council, which is made up of lawyers and experts including the director of public prosecutions, says the new guidance does not affect what sentences are handed out and is simply about providing judges with more information about cohorts of people they may be “less well informed” about.
However, Justice Secretary Shabana Mahmood disagrees, and has argued the decision amounts to “differential treatment before the law”.
Although the process of changing the guidance started under the previous Conservative government, the row has provided the Tories and Reform with an opportunity to attack Labour for presiding over a “two-tier” justice system, where some are treated more favourably than others.
Ms Mahmood has urged the council to reverse its new guidance, but that request was refused – prompting her to warn that “all options” were on the table and she would “legislate if necessary”.
Here Sky News takes a look at what the justice’s secretary’s options are.
Emergency bill
Sky News understands the justice secretary’s first priority is to overrule the guidance, which the Sentencing Council says is necessary to address disparities in sentencing outcomes.
When someone is convicted of a crime the court can use a pre-sentence report (PSR) to help them determine a custodial sentence or community order.
A PSR must be obtained unless the court considers it unnecessary. A defence lawyer can also request a report if they believe there are significant mitigating circumstances.
A PSR will include a defendant’s personal history, including their age, education, family background, employment status, living conditions, mental health concerns and any drug or alcohol dependencies.
A probation officer from the Probation Service, an impartial government body, prepares and writes up the report following an interview with the defendant.
In his reasoning for changing the guidance, the chair of the Sentencing Council argued that the purpose of pre-sentence reports is to provide information to the judge or magistrate, and they they do not determine the sentence.
“Frequently, the information provided will not assist the offender’s prospect of avoiding a custodial sentence: rather the reverse,” he added.
However, critics of the council’s approach believe that the Probation Service, which is consulted in the PSR process, is usually prone to proposing a non-custodial package of community punishment and rehabilitation – which could make a custodial sentence less likely.
As the guidance is coming into force tomorrow, Ms Mahmood will not be able to stop it immediately – but she can try to stop it from being in place for an extended period of time.
Ms Mahmood is expected to do this by bringing in an emergency bill this week that essentially states that the Sentencing Council’s guidelines will not come into effect – in effect, reversing the guidance.
The government is able to do this because of parliament’s sovereignty.
Guidance won’t be changed until after Easter
However, because the House of Lords rises for the Easter recess on 3 April and is needed to approve any legislation, the expected bill cannot pass this week.
Ministers are expected to push though the bill as quickly as possible when both houses of parliament return from the Easter recess on 22 April.
Long-term reform
In the longer term, the row with the Sentencing Council has prompted a wider debate about its role and responsibilities.
Critics believe the council has over-stepped its role and is veering into policy, which should be the preserve of politicians – something the body’s chair has rejected.
The government is already undertaking a review into the role of the organisation, but it is not yet known when that will conclude.
As part of that consultation, there are a number of options the government could consider if it wants to mitigate the Sentencing Council’s powers.
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For example, Ms Mahmood could strip the Sentencing Council of its ability to issue guidelines in the first place – something that would no doubt provoke a backlash within the judiciary.
A bolder move would be to abolish the Sentencing Council entirely, in line with the government’s anti-quango agenda following the abolition of NHS England.
Finally, another option the secretary of state could undertake is to pass legislation that would prevent the Sentencing Council from issuing guidelines without her consent – something Conservative MP Robert Jenrick attempted to do recently through a private member’s bill.
A similar move would be to impose a so-called “democratic lock” on the Sentencing Council that would give the justice secretary a final veto over its recommendations.
