If the Justice Secretary can’t manage her brief or see off a third-rate-sub-Trumpian politician, she should go, argues Russell Fraser.

It is difficult to imagine a less formidable opponent at the despatch box than Robert Jenrick. He is not a serious individual. Prior to running to lead the Conservative Party he had a decade-long career as the kind of middle-of-the-road Tory David Cameron promoted in his own image. In running for the Tory leadership he pivoted, presumably in the belief that he was in touch with the party membership and the wider electorate. Since that time he has adopted a persona somewhere between PG Wodehouse’s Roderick Spode and an alt-right Alan Partridge. So when the Labour Justice Secretary, Shabana Mahmood faced him in the Commons on 5th March, the task ought to have been straightforward.

Mahmood was making a statement on court capacity. She rightly listed all the reasons the ongoing crisis in the criminal justice system is entirely down to over a decade of mismanagement by the Tories. She trumpeted the review of the criminal courts she has asked Sir Brian Levenson to conduct and announced further funding for more court ‘sitting days’. Jenrick, in his response attacked some of the claims and challenged the idea that the additional days were sufficient.

At the end of his response, he moved to address updated guidance from the Sentencing Council on “imposing community and custodial sentences” which comes into effect on 1st April. Jenrick said: “The new sentencing guidelines published alongside this statement will make a custodial sentence less likely for those ‘from an ethnic minority, cultural minority, and/or faith minority community’.” He then went on to ask: “Why is the Justice Secretary enshrining this double standard – this two-tier approach to sentencing? It is an inversion of the rule of law. Conservative members believe in equality under the law; why does she not?”

Mahmood’s response should have been straightforward: the Council is independent and the guidance is intended to address embedded and historical disparities experienced by those groups Jenrick mentioned. Instead she made reference to her own ethnicity and vowed that there would never “be a two-tier sentencing approach under my watch.” There can be no excuse for adopting the phrase ‘two-tier’, a talking point promoted in far rights circles and by Elon Musk following disorder across the country last summer.

Following the Commons exchange, Mahmood posted on social media that she would legislate to stop the guidance if necessary and she wrote to the Council’s chairman, Sir William Davis, expressing her ‘displeasure’. At the same time Jenrick toured newsrooms in a fever laughably calling the guidance ‘anti-white’ and ‘anti-Christian’.

Sir William wrote to the Justice Secretary in response on 10^th March. He reminded Mahmood that the council was created by an Act of Parliament in 2009 and that the “principal role of the Council is to prepare sentencing guidelines”. He set out in detail how individual guidance comes into existence including the consultation process the Council is bound to undertake and confirmed the process had been followed here. Indeed, amusingly, at the time of the consultation Jenrick was a Home Office minister and Mahmood was the Shadow Justice Secretary. Neither responded to the consultation as if confirming the confection of the current row.

He went on to explain that the guidelines included an ‘extensive’ list of ‘cohorts’. At the time he explained there was a general duty to order a pre-sentence report in certain circumstances, regardless of the cohort of the offender. But as he explained it will not mandatory for a judge to make such an order: “The purpose of the list is to remind sentencers of the kinds of cases in which it is likely that they will require more information about the offence and the offender to reach an appropriate opinion of the sentence. The guideline does not mandate a pre-sentence report in those cases.”

Sir William went on to say this: “In relation to offenders from ethnic minorities, there is good evidence (both from the Council’s own research and other independent research) that in relation to some types of offence there is a disparity in sentence outcomes as between white offenders and offenders from an ethnic minority. Offenders from some ethnic minority backgrounds are more likely to receive an immediate custodial sentence than white offenders.”

The Justice Secretary ought to have known this. If she did not then should not be in the job. Not least, because in 2017 her Cabinet colleague David Lammy conducted a review for the Government of the “treatment and outcomes of BAME individuals in the criminal justice system.”

At the time of his delivering his final report to the then Justice Secretary, Lammy wrote: “There are also worrying disparities. Arrest rates are generally higher across BAME groups that the White group. BAME defendants plead not guilty at higher rates than White defendants. There is evidence suggesting BAME offenders are more likely to receive prison sentences for some offences. BAME prisoners are less likely to be identified with problems like mental health concerns, or learning difficulties. BAME prisoners report lower/less access to prison jobs or offending behaviour programmes, and reoffending rates are highest for both Black adults and black under 18s.”

Lammy has not commented in public on the spat. He is doubtless constrained by his own role in Cabinet but one hopes he might have had a copy of his report delivered to his colleague’s office at the very least.

As Sir William concluded his letter, remarkably, he told the Justice Secretary that he would have to seek legal advice if she were seeking the Council to revise the guidance immediately after it was published and following a consultation. Equally remarkably he reminded Mahmood that the “Council preserves the critical constitutional position of the independence of the judiciary in relation to sentencing” and that 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 Mahmood is not across her brief and not capable of seeing off a third-rate-sub-Trumpian politician then she ought to resign. Labour is at its worst when it adopts the language of the right. It does not gain or attract voters; it simply validates the nonsense the likes of Jenrick and Farage peddle. While the ire of many on the left will focus on the Party’s attack on the benefits system and slashing of international aid, this episode is no less abject.

Russell Fraser is a criminal defence barrister at ​Garden Court Chambers.

Image: Shabana Mahmood. Source: https://members-api.parliament.uk/api/Members/3914/Portrait?cropType=OneOneGallery: https://members.parliament.uk/member/3914/portrait. Author: Richard Townshend,  licensed under the Creative Commons Attribution 3.0 Unported license.