Ministers are planning to introduce a last-minute rule change this week to overturn sentencing guidelines that could have led to criminals getting different sentences depending on their age, sex and ethnicity.
Shabana Mahmood, the justice secretary, is planning to bring a bill to the Commons this week to overrule the guidelines, which are due to come into force in England and Wales on Tuesday.
Officials in the Ministry of Justice spent the weekend drafting a piece of emergency legislation which would instruct judges to ignore the council’s guidance. The law would be brief and limited in its scope, according to people close to the process, with ministers hoping to pass it through both the Commons and the Lords in as little as 24 hours.
The law was unlikely to be passed in time to stop the guidelines before they take effect, officials said, but Mahmood is hoping to introduce it to the Commons as soon as Tuesday.
The guidelines from the Sentencing Council for England and Wales would require magistrates and judges to consult a pre-sentence report before deciding whether to imprison someone of an ethnic or religious minority, or a young adult, abuse survivor or pregnant woman.
The council proposed the guidelines in an attempt to reduce bias and reoffending, but has since been criticised by ministers and the opposition for allowing the introduction of “two-tier justice”.
Earlier this month Mahmood wrote to the chair of the council, Lord Justice Davis, calling for the change to be scrapped and insisting there would “never be a two-tier sentencing approach under my watch”.
Davis defied that pressure on Friday, however, saying the council had concluded “the guideline did not require revision” and blaming a “widespread misunderstanding” for the backlash.
He added in a letter to Mahmood: “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.”
Mahmood reacted sharply to the council’s letter, calling the move “unacceptable” and promising to legislate if necessary. Keir Starmer, the prime minister, said he was “disappointed” by the council’s response, adding: “All options are on the table.”
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In the longer term, the justice secretary is looking at a more radical plan to give ministers the power to veto or amend instructions from the arm’s-length council before they come into force. Mahmood has ordered a review into the role and powers of the council and sources say she is looking for ways to give parliament and the government more say over its recommendations.
Such a plan would require new legislation, which could be included in this summer’s sentencing bill. That bill is due to be published after the publication of a sentencing review by the former Conservative justice secretary David Gauke.
