David Lammy should reverse the proposed “democratic lock” over the Sentencing Council

Sentencing for criminal offences is a complex business. The maximum punishment that can be imposed for any given crime is determined by parliament. Courts then decide the sentence an individual offender should receive when convicted of that crime, within the maximum. Between these two sits the Sentencing Council – an independent, judge-led body that produces guidelines to help courts decide what sentence is appropriate in a particular case, given all the relevant circumstances (how serious was it, was it pre-planned, did it target a vulnerable person or involve a breach of trust, and so on). Sentencing guidelines are not binding, but aim to increase the consistency of sentencing within the parameters set down by parliament.

Although the Sentencing Council rarely hits the headlines, it has recently been a source of controversy, and in one of Shabana Mahmood’s last acts as justice secretary the government is now introducing legislation that will require all future guidelines to be approved by both the justice secretary and the Lady Chief Justice.  ⁴⁶ Ministry of Justice, Judicial Office and Mahmood S, ‘Justice Secretary introduces democratic lock over Sentencing Council’, press release, GOV.UK, 2 September 2025, www.gov.uk/government/news/justice-secretary-introduces-democratic-lock-over-sentencing-council  This is a mistake – and one the new justice secretary, David Lammy, should reverse.

Ministers can find independent bodies’ independence excruciating

Ministers rightly expect public bodies to act in line with their policy priorities. They set public bodies’ objectives, appoint their chairs, monitor performance and in most cases provide their funding. Alongside parliament, they also have a key role in holding those bodies to account.

The problem with independent bodies, from a minister’s point of view, is that they can still feel too independent: ministers can be left taking flak for decisions they did not make. This has been the case recently regarding delays in the planning process, and regulation seen to slow growth. The then justice secretary, Shabana Mahmood, would quite reasonably have felt exposed when criticised by her shadow, Robert Jenrick, over a change to one of the Sentencing Council’s guidelines earlier this year.

The change in the guideline was remarkably minor: it introduced a non-binding presumption to request more information about the circumstances of the offender and their offence for certain offenders, including people with substance misuse problems, victims of domestic abuse, and those from an ethnic, cultural or faith minority. The aim was to encourage judges to allocate the limited resources available for pre-sentence reports in a way that was likely to help them overcome bias  ⁴⁷ Lymperopoulou K, ‘Ethnic Inequalities in Sentencing: Evidence from the Crown Court in England and Wales’, The British Journal of Criminology 64 (5) 1189–1210, September 2024, https://doi.org/10.1093/bjc/azae005 , rather than to introduce it.  ⁴⁸ Grice M, ‘UK justice secretary to over-rule new sentencing advice over “double standards”’, Financial Times, 5 March 2025, www.ft.com/content/a97c2dd8-fe8e-4c79-b4a1-24e8218e544c House of Commons Justice Select Committee, Sentencing Guidelines and Parliament: building a bridge, Sixth Report of Session 2008-09, HC715, 2 July 2009,  But this was swiftly characterised by both Mahmood and Jenrick as ‘two-tier justice’, and the government introduced emergency legislation to block that specific part of the guideline. 

The government has now gone much further and announced the introduction of a “democratic lock” giving the justice secretary a veto over all future guidelines. The potential consequences of this are much wider ranging.

There are real benefits to independence, which the proposed “democratic lock” undermines 

Sentencing is always a  ⁴⁹ Independent Sentencing Review, History and trends in sentencing, GOV.UK, 18 February 2025, www.gov.uk/government/publications/independent-sentencing-review-history-and-trends-in-sentencing  careful balance between democratic legitimacy and judicial independence. Setting up an independent body, accountable to parliament, to create sentencing guidelines was intended to avoid politicising the guidelines and to allow for considered, expert judgement on the appropriate range of sentences.  ⁵⁰ House of Commons Justice Select Committee, Sentencing Guidelines and Parliament: building a bridge, Sixth Report of Session 2008-09, HC715, 2 July 2009, https://publications.parliament.uk/pa/cm200809/cmselect/cmjust/715/715.pdf  This is a classic example of the value of independent bodies: they allow specialist decisions – made within bounds that have been set politically – to be distanced from day-to-day politicking.  ⁵¹ Gill M and Dalton G, When should public bodies exist?: Rewriting the ‘three tests’ for when government does things at arm’s length, Institute for Government, 12 July 2023, www.instituteforgovernment.org.uk/publication/public-bodies-tests  

Sentencing policy is vulnerable to a ratcheting effect, with politicians promising ever-tougher sentences to appeal to the perceived desires of the electorate.  ⁵² dependent Sentencing Review, History and trends in sentencing, GOV.UK, 18 February 2025, www.gov.uk/government/publications/independent-sentencing-review-history-and-trends-in-sentencing  Giving the justice secretary a veto over all future guidelines will leave them personally responsible for any changes proposed and make it impossible to depoliticise them. 

This will not necessarily be a more democratic outcome. Evidence suggests that for years, the public has consistently condemned contemporary sentencing as too lenient – regardless of the actual sentencing practices at the time.  ⁵³ Institute for Crime & Justice Policy Research, Submission to Independent Sentencing Review, Birkbeck, University of London, 8 January 2025, www.prisonstudies.org/sites/default/files/resources/downloads/icpr_sentencing_review7.1.25.pdf  But when asked to propose sentences for specific offences, they tend to suggest sentences similar to, or more lenient than, those actually handed down by the courts.  ⁵⁴ Institute for Crime & Justice Policy Research, Submission to Independent Sentencing Review, Birkbeck, University of London, 8 January 2025, www.prisonstudies.org/sites/default/files/resources/downloads/icpr_sentencing_review7.1.25.pdf  

The Sentencing Council is not unique in this. Public bodies have the time and expertise to weigh up different considerations on complex topics, in line with longer term political priorities. The Bank of England, for example, was given the independence to set interest rates differently to the way politicians would set them because that would make it better able to contribute to the economic prosperity that politicians and the public ultimately wanted. At the more advisory end of the spectrum, the Independent Reconfiguration Panel advises ministers on proposals to change NHS services – counterbalancing, for instance, the political popularity of small community hospitals with evidence that the clinical outcomes the public and politicians ultimately seek are often more likely to be achieved by specialist units in larger institutions.

Disagreements over substance should not always lead to a trial of strength

Of course, where politicians and public bodies disagree, the first solution should be to resolve the disagreement through deliberation and – where appropriate – compromise. This is what happens, out of the public eye, most of the time. But when a disagreement cannot be resolved, it is not self-evident that ministers should simply assert themselves over the body in question. 

The government could, of course, have decided to abolish the Sentencing Council  ⁵⁵ Scott J, ‘Don’t like the Sentencing Council? Just abolish it’, CapX, 3 April 2025, https://capx.co/dont-like-the-sentencing-council-just-abolish-it  (as Matt Hancock also considered abolishing the Independent Reconfiguration Panel).  ⁵⁶ Moore A, ‘Independent Reconfiguration Panel will not be abolished by new legislation’, HSJ, 17 June 2021, www.hsj.co.uk/policy-and-regulation/independent-reconfiguration-panel-will-not-be-abolished-by-new-legislation/7030326.article  But that would have deprived judges and magistrates of guidance on appropriate sentencing and undermined equal treatment by courts. Short of abolition, politicians can also resolve controversies by taking greater control over a body, as the justice secretary has done in this case and as Liz Truss also did in the case of the Trade Remedies Authority  ⁵⁷ Gill M and Bishop M, How to set up a public body, Institute for Government, 20 November 2024, www.instituteforgovernment.org.uk/publication/how-to-set-up-a-public-body, p.19 . Before doing so, however, they should consider whether such actions are proportionate. 

Instead, the government may be better advised to overrule a public body on a particular issue, as Shabana Mahmood did earlier this year. But even this option can backfire: Dominic Raab, for example, increased the frequency with which Parole Board recommendations to transfer prisoners to open prisons were overruled by tightening the criteria in 2022.  ⁵⁸ Ministry of Justice, HM Prison and Probation Service and Raab D, ‘Offenders to face toughest test yet for open prison moves’, press release, GOV.UK, 5 June 2022, www.gov.uk/government/news/offenders-to-face-toughest-test-yet-for-open-prison-moves  This was motivated by a desire to improve public confidence in the justice system, but had the unintended consequence of impeding the successful rehabilitation of offenders ahead of their release – and was reversed by Raab’s successor as justice secretary, Alex Chalk, the following year.  ⁵⁹ Prison Reform Trust, ‘Alex Chalk reverses Dominic Raab’s damaging changes to open conditions transfers’, Prison Reform Trust, 18 July 2023, https://prisonreformtrust.org.uk/alex-chalk-reverses-dominic-raabs-damaging-changes-to-open-conditions-transfers/

Politicians have a legitimate and important role in holding public bodies to account, and in overseeing the system of which they are part. But hard cases make bad law, and it is in the public interest for politicians to maintain a focus on how well the overall framework operates, rather than second-guessing individual decisions. For independent bodies to function effectively, then, there needs to be greater political will to defend a body’s independence even when those doing so do not agree with every decision it makes. 

It is concerning that this approach seems increasingly counter-intuitive in the current climate.  ⁶⁰ Simons J, New MPs are shocked by the sclerotic state, Financial Times, 3 September 2025, https://www.ft.com/content/91a8b22d-6cf7-42a1-b7d7-13d998e6fc84  Strong political leadership consists not in taking direct control of everything but in setting direction for, effectively overseeing and publicly defending a public sector within which expert decision-making must retain a key role. David Lammy now has an early opportunity to show such leadership.