Is the rule of law under attack?

rule of law

You may have heard in the news recently, several politicians raising concerns over new sentencing guidelines. What is all the fuss and why are they so upset? To break this down, I will discuss what the new sentencing guidelines are, what concerns have been raised and by who, and possible implications to the rule of law. 

Firstly, it’s important to know what sentencing guidelines are and how important they are to our justice system in the UK. The Sentencing Council refer to sentencing guidelines as guidance that judges must follow (The Sentencing Council, 2025). This applies to both Magistrates and judges in the Crown Court. Although judges may exercise their discretion, there are minimum and maximum sentences imposed on these guidelines for specific convictions. 

On the 5th of March 2025, the Sentencing Council proposed some changes to the UK’s sentencing guidelines. The changes imposed that a pre-sentencing report should occur if the person fell under any of the following criteria*. 

  • At risk of first custodial sentence and/or at risk of a custodial sentence of 2 years or less (after taking into account any reduction for guilty plea)
  • A young adult (typically 18-25 years; see further information below at section 3)
  • Female
  • From an ethnic minority, cultural minority, and/or faith minority community
  • Pregnant or post-natal
  • Sole or primary carer for dependent relatives

(*taken from here)

 So, who was upset with these changes and why? First to speak up on the issue, in the House of Commons, was Robert Jenrick who is the Shadow Secretary of the State for Justice and MP for Newark. He expressed that this was because “This will make a custodial sentence less likely for those from an ethnic minority, cultural minority, and faith minority communities. Why is the Justice Secretary enshrining this double standard? This two-tier approach to sentencing? This is an inversion of the rule of law.”  The justice secretary, Shabana Mahmood replied “I do not stand for any differential treatment before the law for anyone of any kind, and there will never be a two-tier sentencing under my watch or under this Labour government.”

So why did Robert Jenrick refer to the new proposed sentencing guidelines as an inversion of the rule of law? To understand that the best place to look is that to the work of Dicey. He identifies the rule of law as having 3 components.

  1. There should be no punishment without the breach of a law.
  2. The law should apply equally to all.
  3. The general rules of the constitution should be protected through the courts.

(Stanton. J, Prescott C, (2022). 

If the new sentencing guidelines were imposed, would this be a breach of the rule of law? Would all people be equally treated if ethnic minorities, cultural minorities, faith minority communities potentially receive different sentences to those that were not? Does being of one of these minorities put a person in such a position that sentencing need consideration, such as others like age, disability, and carers? Robert Jenrick did not believe so.

The Prime Minister, Sir Kier Starmer, in an interview with GB news stated he was “disappointed in the response of the sentencing council on this issue, which is why we will now bring forward legislation. There is no other option. So, we will do that. We will fast track it, and the Lord Chancellor will set out further details” (GB news, 2025).  

On the 31st of March 2025, just before the new sentencing guidelines were set to be enforced, The Sentencing Council released a statement reporting that they felt the newly imposed guidelines were necessary and appropriate. However, the Lord Chancellor had informed them of new legislation making its way through parliament. This legislation may make the new guidelines unlawful and on that basis, they have delayed their enforcement (The Sentencing Council, 2025).   

A day later, on the 1st of April 2025, the Sentencing Guidelines (Pre-Sentence Reports) Bill was brought in. This Bill has the aim of preventing differential treatment imposed by sentencing guidelines and to reinforce equality. It sets out to do this by amending the powers of the Sentencing Council so that they may not refer to a person’s characteristics when sentencing an offender and specifies that to their race, religion or cultural background (GOV.UK, 2025). 

It appears in this case that the Sentencing Council may have acted in a way that did not fully coincide with the rule of law, as identified by the new bill. Thanks to the likes of Robert Jenrick bringing this to attention in the House of Commons, the government worked fast to put a stop to it and preventing it happening again. Although it was said by the Sentencing Council that they still believe the guidelines were appropriate and are currently suspended but not removed. 

 

References

 

Katie Johnson 

My name is Katie Johnson, and I am in the second year of my law degree here with The Open University. I am a mum and a part-time dental nurse. The Open University has given me an amazing opportunity to return to education, and I am really enjoying it so far. 

I love keeping up to date with politics and the law of the UK and felt like others may be interested in what is happening recently.