What’s the story behind the row over sentencing?

As justice secretary Shabana Mahmood loses her argument with the Sentencing Council about its guidelines – which some claim discriminate against white men – Sean O’Grady takes a look at what led to the controversy, and why it has caused political ructions

The justice secretary and lord chancellor, Shabana Mahmood, has failed in her attempt to persuade the independent Sentencing Council to review its latest sentencing guidelines. Although they were consulted on before the change of government last year, they’ve recently become the subject of intense controversy because they set out a series of criteria in the presence of which judges and magistrates are encouraged – these are guidelines, not rules – to ask for a pre-sentence report on the convicted.

Among less controversial factors, such as pregnancy, mental illness and first offending, are race, religion and gender. The allegation is that the guidelines amount to discrimination against white men. Obviously it has all played out robustly on social media...

Why did Mahmood fail?

She fell into a bit of a trap from where she couldn’t easily win. Taunted by her shadow opposite number, Robert Jenrick, she pledged to remedy matters – but it was not in her hands to do so. Her pledge earlier this month that there would “never be a two-tier sentencing approach under my watch” was foolish. If she lost, she risked ridicule. So it has come to pass.

The Sentencing Council, like all arms of the judiciary, is independent – and, because it had long since completed its deliberations, was reluctant to bend to a politician’s will. So it sent her away with a lesson in the facts of legal life: “The rule of law requires that all offenders are treated fairly and justly by judges and magistrates who are fully informed about the offences, the effect on the victims and the offenders. The section of the guideline relating to pre-sentence reports is directed to the issue of information about offenders, no more and no less.”

Given that Mahmood is herself a barrister, she should probably have known better. So she’s now guilty of attempting to exert political influence on sentencing procedures, but also of failing to live up to her promise.

So did Jenrick win?

Yes. He shamelessly exploited the guidelines, which had been approved by the Conservatives, for political ends, and he knew he couldn’t lose. If the Sentencing Council repented, then he’d win a policy victory. If it stood firm, he could call Mahmood weak – though, as a lawyer, Jenrick also knows he’s on dodgy ground.

More broadly, it helps his tireless and barely disguised campaign to replace Kemi Badenoch as leader of the opposition, by granting him a significant “win”, and one that will go down especially well with the hard-right Tory grassroots.

Are the new guidelines racist against white offenders?

Not really. They were framed in this way to avoid discrimination against certain “cohorts” of people who are grossly over-represented in the prison population – in some cases, the argument runs, because of inherent or systemic racism in society and the criminal justice system (which includes police, case lawyers, judges, juries). It might be better if pre-sentencing were obligatory for all – but that would cost more.

What does Starmer think?

As a former chief prosecutor, Keir Starmer knows all about this, and whatever private views he has, he is backing Mahmood. He’s got no choice but to do so, and he’ll shortly be asking her to implement yet more real-terms cuts in funding for the courts and prisons – a near-impossible task after 15 years of austerity. So he needs to stand with her.

What happens next?

Starmer and Mahmood are acutely aware of the political damage the “two-tier Keir” smear can do to them, and say that “all options are on the table”. If they’re sensible, they’ll try to find a way to use existing human rights and equalities legislation to sort the guidelines out – or, as a last resort, legislate. But Jenrick has definitely scored a rare win for the Tories.