Has the Sentencing Council just created a Constitutional headache for Starmer?

Both the Tories and Starmer's Government are at odds with a Sentencing Council and Judiciary, determined to pursue a progressive agenda - so why can't the Government stop them?

Is the democratic deficit in the UK catching up with Sir Keir Starmer?

This week saw the UK Justice Minister and the Shadow Justice Minister actually agree over a fundamental legal principal: that sentencing should be equal.

This was in response to the Sentencing Council’s latest guidelines, due to be introduced in April this year and which effectively instruct Courts to treat ethnic and faith minorities and other minorities less severely than everyone else. Effectively creating a racially, religiously, and ethnically divided legal system.

Now the British people are a people who believe in fair play, we invented cricket, we invented football, we invented boxing, we invented rugby and the rules of those sports and many others invented in this country reflect the sense of natural justice that our forefathers developed when they were living in mud huts in the dark German forests. I mention this because (and believe me, as a Scot it smarts to admit this) but this idea is peculiarly English and is rooted in the Common Law which, I believe is the single most important contribution to civilisation the English ever made, and its principles were originally developed by hairy Germanic tribesmen and women (it was a surprisingly equal society) who worshipped Wotan and the gang and would torture captured Romans to death in their honour. (Hey, I’m Scottish, I had to get that one in).

Anyway, British people demand fair play. It’s in our DNA as much as queuing, moral outrage, marmalade, and marmite. So last summer we had a great example of how our government and criminal justice system no longer agrees, that fair play is an actual British Value. Two Tier Keir was on full display urging the Courts to throw away the key on hapless working class grannies moved to anger by the nurder of children, and lacking the education of a Douglas Murray, expressed themselves in ways our law now feels requires a jail sentence. It is interesting to note that the now Great British Public sitting on juries considering these cases when a Not Guilty plea was made, they are deciding not guilty verdicts. All of which fuels the public’s concern that we have a two tier criminal justice system: if you are a member of the protected groups as outlined in the Equality Act 2010 then you will be treated differently by our police, prosecutors and Procurator Fiscals and judiciary.

No! No! No! No! Goes the brief from Number 10. There is NO Two Tier Justice in the UK, everyone is treated the same way. (Sir Keir does seem to think by repeating mantras people will believe him: : ‘£20 billion black hole’; ‘we have Freedom of Speech in the UK.’ etc.).

Journalists and politicians were shut down should they dare mention a two tier system. This was ‘misinformation’ (ironically proving JD Vance’s point that that word is used to protect governments from scrutiny) a ‘conspiracy theory’. Well, after all, it worked with those pesky anti vaxers so why not repeat and rinse?

And then along comes the Sentencing Council this week and shows everyone that they were right, there IS a Two Tier Justice System in the UK after all by publishing guidelines for the judiciary effectively instructing them to kid glove minorities whilst throwing the book at the whitey.

I’d have loved to be a fly on the wall in Number 10 when they published this. No wonder Starmer looks ill. I wonder if he is on Beta Blockers yet?

So, Robert Jenrick, Shadow Justice Minister is all over this like a wee ginger terrier of a Melrose Wing Forward pouncing on a loose ball (channelling my inner Bill McLaren) and in Parliament he asked Justice Minister Shabana Mahmood to reassure us that we don’t have a Two Tier Justice system in the United Kingdom by ordering the Sentencing Council to reverse their advice.

So presumably, Sir Keir phones Shabana and tells her (I’m imagining Henry II speaking to drunken Norman knights here) “rid me of these recalcitrant activist judges! I’ve been telling everyone we DON’T have a Two Tier System and those bastards have just sold me down the river (oops - can’t say that!) I mean, sold me out.”

Shabana dutifully writes to the Sentencing Council and requests that they reverse their recommendations as both Shabana, as a member of an ethnic minority, and His Majesty's Government believe most strongly that justice must be blind. Now credit where credit is due, Shabana was right to point out that ethnic minorities and others do not wish to be treated any differently by virtue of their race etc. Unfortunately she stopped short of calling them out for the open racism this is, (the elderly white men who make up the Sentencing Council obviously think that (I’ll quote a Nigerian friend here) “growing up in ‘Bongo-Wongo Land’ means that you’re clearly unable to conduct yourself in a civilised manner unlike us white people and therefore the state needs to make allowances, now please can you use some cutlery when you eat?”.

So for once it seems that the Government and opposition are in agreement. Only, Jenrick has played a cunning card here because he’s demanded that the Minister stop this, knowing damn well she cannot. She has no power to do so. All she can do is ask pretty please.

And there is the problem for Sir Keir, a problem created for him nearly 30 years ago by Tony Blair, a man who is increasingly coming to light as behind levels of Constitutional vandalism not seen since Cromwell.

The Sentencing Council was founded in 2003 another of these ‘independent’ quangos, sold to all ans sundry as a good idea because it would stop pesky politicians interfering with how Things Should Be Done. Only, ‘independent’ actually means ‘not democratically elected or accountable to anyone’. You see. This was part of what Peter Hitchens has repeatedly said about Blair: he was always and is still a Trotskyite who understood that if Labour were going to drive a progressive agenda they must first win power and you did that by dressing in a suit and beginning every sentence with “Look..” rather than taking the Foot/Corbyn approach of LARPING in a Lenin hat and beginning every sentence with “Comrade…”. Only, Blair was considerably more radical in his long term game than anyone knew at the time and people are only beginning to wake up to, most disappointingly, the Conservatives who have frankly been asleep at the wheel over this for 14 years.

So Blair introduced dozens of these ‘independent’ quangos, powers were moved from Secretary of State to these quangos. In reality this moved power from the voters to unelected, unaccountable quangos. Who appointed the members of the quangos? Well, that was the Blair and Brown governments so they chose progressive individuals, who in turn recommended progressive individuals for future appointments. Even when a conservative was appointed, the years of service on such committees ensured that they always lent to the progressive. Fuelling the drive for progression were hundreds of publicly funded charities, activist organisations who actively lobbied the councils. In one swoop, Blair destroyed democracy in the UK and replaced it with a sort of kritocracy (that’s rule by lawyers) by an unelected committee. The closest model I can find is a blend of the EU and the Revolutionary government of France under Danton and Robespierre (only the latter was arguably more democratically accountable than our model is). Gone was ministerial oversight and therefore Parliamentary and voter oversight of everything from interest rates to sentencing guidelines.

Now Jenrick knows damn well that Starmer and Mahmood cannot do anything other than beg the Sentencing Council.

So fast forward to this morning and on the BBC Radio 4 Today Programme, Jenrick makes this point again, only to be countered by an indignant Emma Webster. It is worth quoting the discussion in full (from Newsbreak) :

“He (Jenrick) said the pursuit of “equality of outcomes rather than equality of treatment” is “wrong and a dangerous approach”. Suggesting the change, aimed at redressing existing imbalances in the justice system, is unnecessary, Mr Jenrick told BBC Radio 4 ’s Today programme: “If you're asking me, ‘is there authoritative evidence that says that a black person or somebody who is a Hindu, a Muslim or a Jew who has committed exactly the same crime as, say, for example, somebody who is white or Christian, with all the same aggravating factors and all of the same pre offenses would get a different outcome? No, I don't think there's authoritative, conclusive evidence of that.”

But he was challenged by presenter Emma Barnett , who said “a two-tier system of justice already exists”, citing an email from a sitting magistrate who said claims straight white men will be discriminated against under the changes are “objectively false”.

“They are seeking to address the discrimination that is currently within the system,” Ms Barnett said. In a pointed barb at Mr Jenrick and Ms Mahmood, she said: “A sitting magistrate thinks both you and the justice secretary are wrong and there is concern here about wrongly stoking division.”

So Barnett has let the cat out of the bag. She’s quoting a Magistrate here. ‘They are seeking to address the discrimination that is currently in the system’. i.e. There IS a Two Tier Justice system and here is a Magistrate admitting it and also admitting that he, and presumably others in the judiciary, are dabbling in politics rather than administering the law without fear or favour.

None of this should be a surprise, or is a surprise to those of us paying attention. My late father was a Scottish Sheriff who honoured the principle of neutrality to a fault. He repeated ad nausea that being a member of the judiciary meant that you sacrificed your right to express your political opinions in public and had to be extremely careful to stick to the law and not to allow your own political opinions and biases interfere with the principle of blind justice. Now, when he was on the bench, it was the Magistrate, Sheriff or Judge who decided any mitigating circumstances and the appropriate sentence. Until that was all taken away by the Sentencing Council whose guidelines are effectively rules that you cross at your own peril. My Old Man wouldn’t discuss politics at the dinner table and he wouldn’t ever ever tell us how he voted. He said these were freedoms he had to give up to be an effective judge, and that was pretty much the standard in the judiciary up until the late 1990s.

So why should a judge not be political, what is wrong with a judge deciding to be progressive? Well in the UK no one elects the judiciary, the independence of the judiciary was guaranteed by the judiciary agreeing to honour the requirement to be strictly neutral and objective, as my late father did. He always said that the moment the judiciary starts to dabble in politics, they lose all authority. They are the Crown and are bound by the same laws that bind the Crown viz politics.

Yet that is no longer the case, is it? We now have judges, prosecutors, procurator fiscals and Chief Constables who see it as their duty to ‘be progressive’. This is all done under the guise of ‘supporting Human Rights’ but all in practice it creates a scenario where they start making up laws as they go along, just look at the Police in this respect.

In the UK Parliament is Sovereign. That is the fundamental guiding principle of our Constitution. But Blair vandalised this by removing so much actual power from Parliament and allocating it to unelected, unaccountable quangos. He did this to drive the progressive agenda, even if Labour were out of power. And it has worked.

So why the hell did the Tories do nothing about it over 14 years? Well here it is worth listening to two YouTube interviews. Firstly Dominic Cumming’s interview with Chris Williamson and secondly Liz Truss’s interview with Andrew Gold. So in 2010, Cameron and Clegg combine to make a coalition. Now Cameron knew that Blair had set up these quangos and why he had done this, he knew he had to act. His ‘3rd Sector’ plan was actually a move to bring some regulation to the hundreds of activist charities all on the public pound that Blair had established. But Cameron lacked the political clout, in coalition, to do anything about this and one reason was that it would require an Act of Parliament to revoke each of these quangos. Blair had locked them in by introducing the Supreme Court, another undermining of the Sovereignty of Parliament. Since 2010 the Supreme Court has had several showdowns with Parliament where it genuinely thinks that it is akin to the Supreme Court of the United States. Its members genuinely see themselves as superior in authority to elected politicians. This was obvious during the Brexit struggles.

In the interviews I quoted above, both Truss and Cummings essentially said that there is nothing a Cabinet Minister or a Prime Minister can do to change any of this without Act of Parliament and it is likely that the Supreme Court would challenge this so each reform would result in prolonged, costly and damaging legal challenges in that Court. Now grasping this nettle was something that Boris was willing to attempt, hence his instruction to Dominic Cummings to go after the ‘Blob’, but along came COVID. Truss admits she was utterly naive about the power held by the unelected quangos. She also tells Gold that the priority for any right wing government getting into power must be to dismantle the kritocracy and quangocracy and restore power to Parliament, to restore democratic accountability.

And then this brings us back to Starmer, who is getting a sharp lesson in the reality that he is as shackled by Blair’s krit/quangocracy as any Tory PM was. You see the problem with removing democratic accountability is that even though power has been moved, Parliament is Sovereign, and that is what people expect and here you have a political hand grenade for Starmer where the progressive quangos have been left to themselves for 14 years and have drifted further and further away from public opinion. Now Labour are back they are realising that they are as impotent as the Tories were to tackle this problem.

Starmer looks like a man whose philosophy has been shaken to its core over the last six months. The certainties of the neo liberal progressive west have been turned upside down and he’s floundering to cope. He doesn’t understand why the public is angry, he doesn’t understand why the public won’t play ball and listen to him, he doesn’t understand why everyone from the US Vice President to the Free Speech Union is attacking him for destroying Freedom of Speech. He seemed to genuinely believed himself when he tried to refute Vance’s accusation in Washington last week and probably thought he had been robust in his refutal. To me and I am sure many others, he sounded like a petulant school kid denying they had copied another’s homework.

This is the first time a Labour government has had to interact with the quangos. The Blair and Brown administrations don’t count as they created these monsters in their own image. Since then public opinion has changed and the monsters have become uncontrollable. If the Magistrate quoted on the Today Programme this morning is any indication of the position of the judiciary, Starmer may have a serious constitutional fight on his hands as he tries to realign his party with an increasingly angry electorate who will see this as Starmer saying one thing and doing another.

Read the comments under today’s newspaper articles covering this subject. Most people commenting don’t understand that Starmer is powerless to do anything about this and they will be even more angry when they find that out for themselves.