The justice secretary is to meet the Sentencing Council later this week, she announced yesterday. Shabana Mahmood promised MPs that she would “consider its role and powers”.
She told her Conservative shadow Robert Jenrick:
If I need to legislate, I will do so, but I will ensure that whatever changes I bring forward are workable and deliver the fair justice system that we all need and deserve — one that his government did not deliver.
This seems to be a slight softening of Mahmood’s tone compared with what I described last week as her “overreaction” to Jenrick’s earlier taunting. The opposition justice spokesman had suggested that a new guideline instructed sentencers to impose more lenient sentences on those from ethnic minorities than on white offenders, a claim that Sir William Davis, chair of the Sentencing Council, described this week as “completely wrong”.
But Jenrick kept up the pressure in parliament yesterday by proposing new legislation. His Sentencing Council (Powers of Secretary of State) Bill has not yet been published but its long title indicates that it would prevent the Sentencing Council from issuing sentencing guidelines without the consent of the secretary of state. It would also give the justice secretary power to amend sentencing guidelines before they were issued by the council.
Jenrick’s bill is pure party politics and has no chance of becoming law. What Mahmood must now decide is whether to rise above the political fray, put the spat behind her and respect the current separation of powers between the government, parliament and the courts.
Davis, who sits as an appeal judge as well as chairing the Sentencing Council, emphasised judicial independence in a letter he sent Mahmood on Monday.
He told the justice secretary:
All judges and magistrates are required to apply any relevant guideline unless the interests of justice require otherwise. In practice, the guidelines form the backbone of every sentencing decision made throughout England and Wales.
There is general acceptance of the guidelines by the judiciary because they emanate from an independent body on which judicial members are in the majority. The council preserves the critical constitutional position of the independent judiciary in relation to sentencing.
In criminal proceedings where the offender is the subject of prosecution by the state, the state should not determine the sentence imposed on an individual offender. If sentencing guidelines of whatever kind were to be dictated in any way by ministers of the crown, this principle would be breached.
Rule of law
Would failure to respect that principle amount a breach of the rule of law? With impeccable timing, the House of Lords constitution committee has just set itself the task of finding out. Yesterday, it posed what generations of students will recognise as a classic series of exam questions.
It said:
The committee welcomes written submissions on any aspect of this topic, and particularly on the following questions. Witnesses are encouraged to include examples. It is not necessary to answer all the questions.
Defining the rule of law
What are the components of the rule of law?
i. Why is the rule of law an important tenet of the UK constitution?
ii. Which factors can be used to assess the health of the rule of law?
iii. Is useful assistance to be gained from definitions of the rule of law used by international or supranational organisations; or in the legal systems of other countries?
How well is the rule of law understood by politicians and the public?
i. Has the rule of law been confused with the rule of lawyers?
The operation of the rule of law
What threatens the effective operation of the rule of law in the UK?
What is parliament’s role in upholding the rule of law? Is it performing this role well, and how could it be improved?
i. How can parliament improve its legislating to better facilitate the rule of law?
What is the government’s role in upholding the rule of law? Is it performing this role well and how could it be improved?
What is the role of the judiciary in upholding the rule of law? Is it performing this role well and how could it be improved?
Is there a role for the public in upholding the rule of law and international influence?
i. Is there a greater role for education, the media and civic society in promoting the rule of law?
How important is the rule of law for the UK’s economy?
What threatens the effective operation of the rule of law globally?
i. Which countries do you think are leaders in adherence to the rule of law, and why is this the case?
ii. How effective is the UK as an advocate for the rule of law on the international stage? How could this be improved?
Candidates should not write on both sides of the paper. Indeed, they should not write their answers on paper at all. The exam closes on 15 April.