Robert Jenrick is Shadow Justice Secretary, a former Home Office, Health and Housing Minister and is the MP for Newark

In just eight day’s time we will have a sentencing system that the Justice Secretary herself has conceded is ‘two-tier’.

From 1st April, under new Sentencing Council guidelines judges will be instructed to order a pre-sentence report (PSR) – the first step to a non-custodial sentence – for all women, transgender people, neurodiverse people, ethnic minorities and those from “faith minority communities” (a term I presume means anyone other than Christians).

If the rule of law means anything, it’s that everyone is equal before the law.

These new guidelines tear that to shreds by explicitly instructing judges to treat minorities differently. For victims it means an inversion of justice, with the severity of punishment now dependent on the religion and skin colour of the offender.

If this goes ahead, justice will no longer be blind – and confidence in the criminal justice system will be severely damaged as a result. But it is not just a sacred constitutional principle that will be vandalised.

The proposals have been described as a ‘get out of jail free card’ by magistrates as an offender will receive a pre-sentence report if there is just a ‘possibility’ that they are one of the listed cohort. This will undoubtedly be exploited by offenders who make false claims about their identity to escape a prison sentence.

The new guidelines are likely to lead to even greater court delays as the probation service (already operating above capacity) struggles to keep up. We’re currently staring down the barrel of a two-tier justice system that costs tens of millions of pounds to the taxpayer.

Those that defend the new instructions – and there are plenty of them on the Labour backbenches – argue that the justice system is already two-tier, with minority groups treated more harshly. These arguments must be addressed head on.

It is true that some minority groups are over-represented in prison.

For instance, transgender people are more than twice as likely to be in jail compared to men. But Ministry of Justice data from 2020 shows they are also significantly more likely to be in prison for sex offences. 76 of the 129 male-born prisoners identifying as transgender at the time had at least 1 conviction for a sexual offence. Sending fewer of these serious offenders to jail in the name of equity would obviously put the public at significant risk.

Despite a huge amount of research into this area, there is no conclusive evidence that suggests an ethnic minority citizen would receive a longer sentence for the same offence as their white neighbour with the same past record of offending. Nor is there a body of academic research which shows that minority groups are being wrongfully convicted.

In the absence of proof of direct discrimination, proponents of the new sentencing guidelines point to data that show minority groups are generally over-represented in prison. The criminal justice system, they argue, should be used to reengineer social outcomes to achieve equity. However even on their own terms this argument collapses. Certain minority groups, for instance British Hindus and Sikhs, are less likely to go to jail than their white British counterparts – but nobody is suggesting treating them more harshly to rectify this discrepancy.

The final nail in the coffin for the Sentencing Council’s new instructions is that they concede they have no conclusive evidence that ethnic minorities are less likely to receive a PSR. Rather embarrassingly, they don’t have any data on the number of PSRs issued to the new groups they have listed. So they are trying to fix a problem that they can’t even evidence exists.

I will not let the principle of equality under the law fall by the wayside.

I have personally initiated legal proceedings to judicially review this decision on the grounds it is discriminatory.

Last Friday I introduced a piece of legislation that would have given the Justice Secretary the power to overrule the Sentencing Council and block the guidance; however, Labour shamefully objected. But I won’t let party politics get in the way – if Shabana Mahmood brings forward emergency legislation to curb the powers of the Sentencing Council and fix this, we will support her.

For too long powers have been transferred from Ministers to unelected bodies, like the Sentencing Council, that make undemocratic decisions the public didn’t ask for and parliament didn’t consent to.

It’s high time for a fundamental overhaul.

We have reached a high water mark of judicial activism, where the rule of law has been hijacked in favour of rule by lawyers. If judges and legal quangos step into the political arena, then they can expect a political response.

For all of Mahmood’s posturing, her inaction on this crucial matter suggests she is supportive of the Sentencing Council’s guidance. This, after all, is a policy with Labour’s fingerprints all over it.

The last Labour Government created the Sentencing Council and the genesis for this guidance was the David Lammy Review. Mahmood supported a group that described the criminal justice system as institutionally racist and had a representative at the meeting when the new guidance was approved.

She could have used her powers of appointment to remove the individuals behind the guidance from the Council and she could have legislated to stop it – but instead she has sat on her hands. As a result in just over a week we are facing the prospect of two-tier sentencing because of her and Sir Keir Starmer.

This sorry saga is emblematic of a much wider failure, where the criminal justice system treats people differently from the point of arrest right through to sentencing.

In new instructions from the National Police Chief’s Council, and endorsed by the Government, officers have given their ‘unwavering commitment’ to ‘racial equity’, stating explicitly that ‘it does not mean treating everyone the same or being ‘colour blind’’.

It follows revelations yesterday that during the height of the BLM protests, the MET police surrendered to the hostile mob and withdrew armed officers from outside Downing Street – despite fears that No10 could be overrun. Taken together, there is a growing perception that we have a two-tier justice system where fashionable causes – like Just Stop Oil – and minority groups are treated more leniently than everyone else.

At a time when trust in institutions is decaying and the country is struggling with massive corrosion of social cohesion, this is a major problem. The fabric of our country is fraying from unprecedented levels of mass migration and the denigration of British culture – and a two-tier justice system that appears to discriminate against white, Christian men is not only deeply unfair, but also a recipe for social unrest.

Growing up in Wolverhampton in the 1980s, I saw racism up close and the pain it caused.

Despite the progress we have made, there is more to do. The way to correct this injustice is to treat people with equal dignity, not to attempt to engineer society with more discrimination. We must rebuild our nation and our sense of national togetherness as one country under one flag, and it begins by every citizen being equal under the law.

The post Robert Jenrick: We are on the brink of two-tier justice under Two-Tier Keir appeared first on Conservative Home.