At the 11th hour, by the skin of our teeth, England and Wales have avoided the two-tier sentencing regime we were set to be lumbered with today. Two-Tier Tuesday hasn’t come to pass after all.
The new rules would have forced judges to almost always order a pre-sentence report (PSR) for defendants from an ethnic, cultural or faith minority, among other categories. PSRs, drawn up by the probation service to give judges more background about a defendant, do not necessarily entail a lighter sentence, but they do make one more likely. The upshot would have been a system that treats those from minority groups more favourably. The aim of this was, the Sentencing Council explicitly said, to reduce ‘disparities in sentencing outcomes’ between groups.
Thankfully, yesterday, after the Labour government threatened to bring in emergency legislation to override the rules, the Sentencing Council backed down at the last minute. Justice secretary Shabana Mahmood will still bring in her new bill anyway, ramming the point home and clipping the wings of the puffed-up justices at the Sentencing Council in the process. This comes after Sentencing Council chairman William Davis repeatedly insisted that the council had no obligation to heed the government’s criticisms.
We can count this as a small but significant win. Success, after all, was not assured. The Sentencing Council had stubbornly insisted that the correct bureaucratic procedures had been followed. Blairite talking heads came out of the woodwork to defend the council’s ‘independent’ expertise, and to denounce criticism of its unelected lawyers as ‘Trumpism’. Yet it turns out that a democratically elected government can indeed bring an errant quango to heel, should it have the will to do so. Let’s hope that this blow against the Blob will be heard with trepidation around Whitehall.
Still, we cannot let the political parties off the hook here. Both Labour and the Conservatives bear some responsibility for things getting to this stage. It was under the Tories that the consultation into these guidelines got underway, for one thing. As for Labour, as shadow justice secretary Robert Jenrick has uncovered, several meetings of the Sentencing Council took place at which a representative for the justice secretary declined to raise any objections. Either Mahmood and her office knew about the guidelines and were initially happy for them to go ahead, or they were totally ignorant of their contents. Neither possibility reflects well on Mahmood. For her officials to now be crowing that this represents a ‘total victory’ is thus a little rich.
What this does illustrate is the zeal with which the British state will pursue unfair, discriminatory policies in order to address disparities. As Tom Slater has written before on spiked, deeply embedded within our political class is ‘the notion that all racial disparities equal racist discrimination and that “anti-racist” discrimination is required to correct it’. This damaging idea turns equality before the law on its head, instead mandating that individuals be treated as ciphers for their ethnic group. It also means that where there are observable disparities – whatever the reason for them – bodies like the Sentencing Council feel moved to play social engineer to encourage more ‘equal’ outcomes.
Despite this victory over the Sentencing Council, the quangocrat class remains fiercely wedded to this damaging worldview. Just last week, amid all the righteous fury about the two-tier guidelines, we saw some glaring examples of this.
The Telegraph reported that ethnic-minority criminal suspects are being given priority for bail under new, separate guidelines, which came into force in January. Needless to say, whether a person is granted bail or remanded in custody is of tremendous importance, and can often influence both plea decisions and the ability to organise a defence. Now, access to bail will be easier for minority groups than for the rest of the population. Unlike the now-quashed guidelines, this isn’t just a plan in the pipeline – it’s happening already. Notably, the list of those who are favoured for bail under this scheme is precisely the same as those who would have received preferential treatment under the sentencing guidelines.
Or take the National Police Chiefs’ Council’s announcement last week of an ‘anti-racism commitment’, promising that the British police will ‘become anti-racist’. The senior policing body pledged an ‘end to racial disparities in… outcomes’, endorsed ‘racial equity’ and even explicitly rubbished the idea of being merely ‘colour-blind’. In a familiar pattern, here is another state institution beating itself up over alleged disparities and then pledging to treat people differently.
Interestingly, this came in the same week that Sir Andy Marsh, chief executive of the College of Policing, admitted that accusations of two-tier policing have become ‘almost impossible to defend against’. A lot of policing’s reputational troubles in recent years, he said, have been ‘self-inflicted’. I’ll say.
Shabana Mahmood’s initial response to the two-tier guidelines was to insist that there will never be two-tier justice under her watch. Given Labour’s championing of divisive equalities agendas in the past, one could be forgiven for doubting the sincerity of such pronouncements. But for now, let’s be charitable and take her at her word.
In taking on the Sentencing Council, she has struck an important blow for genuine equality. But to put a stop to two-tier justice in Britain, there is still so much more work to do.
Laurie Wastell is an associate editor at the Daily Sceptic and host of the Sceptic podcast. Follow him on X: @L_Wastell.
