If the Justice Secretary’s draft
law aims to surgically remove the offending part of the Sentencing Council’s
guideline, I hope she never operates on me.
It will block guidelines
about obtaining pre-sentence reports (PSR) being “framed by reference to the
personal characteristics of an offender” but doesn’t clarify which. Race, religion
or belief and cultural background are spelled out, but the explanatory
notes to the bill make clear this is a non-exhaustive list.
So will the law prevent the guideline saying that a PSR will
normally be considered necessary for any of the other cohorts currently mentioned:
pregnant women, young adults or people with
chronic health conditions for example?
Parliamentary Counsel won’t have had much time to draft the law,
but it seems unsatisfactory. Unless that is, the Justice Secretary is uncertain about allowing
what she calls differential treatment for these other groups. But a fast track procedure for law making is hardly appropriate for amending and debating these questions.
In the longer term, the role of the Sentencing Council is
being added to the long list of matters being reviewed
by the Justice Ministry. The
Justice Secretary told Parliament “we have uncovered a democratic deficit”
and proposes to fix it as part of the post Gauke sentencing reforms.
It’s fair to say that until the last month, the Council has excited limited political attention over the 15 years of its operation. So what has been the Council’s relationship with Parliament and with government before the current brouhaha?
As for Parliament, the Justice Committee is always consulted about guidelines and generally responds. It periodically invites the Council’s Chair to talk about its work but the last of these "regular evidence sessions" was in 2021. Additionally, shortly after his appointment, the current Council Chair Lord Justice William Davis did give oral evidence in December 2022 to the Committee's inquiry into Public Opinion and Understanding of Sentencing and spoke at an event to launch the inquiry report in November 2023. Davis also gave evidence to a House of Lords Committee inquiry into Community Sentences in May 2023.
At the December 2022 evidence session, the Justice Committee Chair told Davis he hoped " this will be the first of a number of constructive discussions that we will have". But there don't seem to have been any formal evidence sessions focussed on the work of the Council since, at any rate public ones.
This is despite the Council’s objective of increasing parliamentarians’ understanding of their work “including by discussing how best to establish regular evidence sessions with the Justice Committee”. The Council was planning to attend regular evidence sessions from the first quarter of 2022 but appearances in Parliament since then have been infrequent and ad hoc, providing limited opportunities for scrutiny.
As for MPs more broadly, Professor Tony Bottoms’ internal review of the Council in 2018 reported that it once held an awareness day in Parliament but “attendance by MPs other than those on the Justice Committee was poor.” The Council rejected Bottoms’ suggestions that they hold a further event for MPs and to open itself up to a television documentary about its work. Given the election of so many new MPs last year, the Council could certainly revisit the first of these ideas.
As for government, an official representing the Lord
Chancellor attends Council meetings, presumably as an observer.
In 2016, the
Ministry of Justice and Cabinet Office exempted the Council from the need to undergo the kind of formal regular review
normally undertaken of arm’s length bodies. This was “due to
its unique role in maintaining the constitutional balance between the
executive, legislature, and the judiciary.” (Incidentally, Robert Jenrick seems to have
been a Parliamentary Private Secretary to the then Justice Secretary, Liz
Truss, when that decision was made).
When in 2020, the Council itself consulted
about what its priorities should be for the next five years, the Justice Committee
and then Lord Chancellor responded
although no other MPs.
The resulting
strategy comprises five objectives, the third of which is that the Council “will
explore and consider issues of equality and diversity relevant to our work and
take any necessary action in response within our remit. One of the actions to
achieve this is to “ensure any evidence of disparity in sentencing between
different demographic groups is taken into account when deciding whether to
develop or review a guideline by including this as a consideration in the
Council’s criteria for developing and revising guidelines.” The controversial elements
of the Council’s revised guideline on the imposition of community and custodial
sentences in large part flow from this welcome commitment.
Back in 2016 I wrote what I hope was a constructively
critical report about the Council for Transform
Justice and elaborated
on it four years later. The second report argued for a fundamental debate
about how the Sentencing Council can play a greater role than it currently does
- as an expert body in the development of more effective sentencing law, policy
and practice in England and Wales”.
I suppose we might get that debate now although in the wake
of the unedifying political pile on during the last month I have my doubts.
