A progressive sentencing guideline that was due to come into force today has been shot down in the crossfire of the culture wars. This is devastating news for people whose lives would have been changed by the guideline, such as pregnant women and mothers.
The Sentencing Council’s updated “imposition of community and custodial sentences” guideline signalled a change in sentencing. It would have required magistrates and judges to consult a pre-sentence report before deciding whether to imprison someone of an ethnic or religious minority, alongside other groups including young adults, abuse survivors and mothers. It would have taken into account structural disparities in sentencing outcomes, such as the high risk of stillbirth that pregnant women face in prison and the damage caused by separating mothers from children. It would also have introduced measures to combat racism in courts. The UN has described our justice system as systemically racist, and a 2017 review conducted by the now minister David Lammy acknowledged its “racial bias”.
The guideline was commonsense, evidence-led policy that the Sentencing Council had developed in careful consultation with criminal justice experts. England and Wales are in the grip of a prisons overcrowding crisis, overseen by a prisons minister, James Timpson, who has called for the need to “take politics out of sentencing”. In this context, you would think the government would champion these new changes, which could serve to reduce the women’s prison population in particular.
Instead, the lord chancellor, Shabana Mahmood, chose to perform a populist pantomime instigated by the shadow justice secretary, Robert Jenrick. When the Sentencing Council announced the guideline last month, Jenrick labelled it “two-tier justice”. This echoed Tommy Robinson’s “two-tier policing” slogan from last summer’s riots, which claimed that white far-right protesters were treated more harshly than ethnic minorities.
Jenrick’s ploy to hijack the guideline is not surprising: this is the same man who resigned as immigration minister in 2023 because the Rwanda deportation scheme didn’t “go far enough”. What is truly appalling is that Mahmood decided to play along in an attempt to win over Conservative and Reform UK voters.
The number one rule of political communications is that you don’t repeat your opposition’s framing, even to refute it. Repeating the right’s slogans only reinforces its power. Mahmood’s response that “there will never be a two-tier sentencing approach under my watch” was foolish and dangerous. Instead of challenging the dog-whistle slogan, she legitimised it, which then triggered its repetition across the press. When the Sentencing Council stuck to its guns, Mahmood threatened to pass emergency legislation to overrule it. The council, browbeaten, suspended the implementation of the guideline.
It is infuriating to see another Labour government seek to appease a rightwing voter base by reinforcing the “tough on crime” doom loop that has gridlocked our justice system for the past 30 years. It was New Labour’s punitive posturing that drove up the prison population by 40% between 1997 and 2010. Feverishly trumpeting law and order, Tony Blair and Gordon Brown collectively introduced more than 3,500 new criminal offences, and courts began to hand down increasingly longer – and indefinite in the case of the IPP scandal – sentences that have directly contributed to the prisons overcrowding crisis we see today. England and Wales have the highest incarceration rate in western Europe. The statistics are clear: prison creates more problems than it solves.
Yet political debates on criminal justice issues are never about the facts; they are opportunities for political parties to score points against each other. This is a trend known as “penal populism”, which the government’s own independent sentencing review has cited as the main driver of our dangerously overcrowded prisons. Political grandstanding on criminal justice is one of Labour’s trademarks, but Mahmood’s readiness to perform on the populist stage is a new low.
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