Mahmood may be about to show the Tories that you can just undo things

We are this morning presented with a curious contradiction. Last night Robert Jenrick, the Shadow Justice Secretary, tweeted that: “Labour tried to hoodwink the public they oppose two-tier justice, but this Ministry of Justice guidance proves they are peddling it.” He went on:

“Shabana Mahmood’s department has also issued guidance to probation officers writing pre-sentence reports that they should take into account the ‘culture’ of the defendant. Instead of equality before the law, this is cultural relativism that will put the British public at risk.“

Damning stuff, compounded further by a report in the Daily Telegraph that “ethnic minority criminal suspects are being given priority by judges considering bail under new two-tier justice guidelines drawn up by the Ministry of Justice”, including on the grounds of “trauma suffered by suspects whose relatives experienced racism or discrimination”.

And if you think that sounds like the right-wing press over-egging it, here’s the relevant section of the actual document:

(Inter-generationally and relayed to the defendant” means that you did the crime, in part at least, because somebody did something to your ancestors.)

Yet then we open the morning’s Times and discover that: “Shabana Mahmood, the justice secretary, will introduce legislation next week that will override a new set of rules that critics warned would create a form of “two-tier” justice.” Nor is she dragging her feet:

“Mahmood will rush an emergency bill through the Commons and the Lords this week to block the changes but is unlikely to succeed before they come into effect. “We are moving as fast as possible to kill this,” a senior government source said.

“The guidelines have enraged No 10 and could lead to the powers of the Sentencing Council being curtailed in more sweeping legislation later this year.”

So which is it? Is Labour lying to the public whilst secretly pushing ahead with plans for racially- and sexually-variegated (amongst other things) justice? Or is the Government meeting the moment and taking the measures necessary to put an over-mighty quango in its place?

The key to solving the riddle is the word ‘department’. Jenrick seems evidently correct that the Ministry of Justice has been advancing this agenda. But that – and we might dub this the ‘futility of it all’ defence – does not necessarily mean that the Starmer Government was really cognisant of it. After all, as I wrote last week, the Conservatives weren’t.

It’s still a tangible win for Jenrick at a point when the Tories aren’t getting many. Fair or not, the charge that Labour dragged its feet on legislating (not least by rejecting his own bill) out of latent sympathy with the Sentencing Council’s objectives is sufficiently plausible that it might stick.

(Indeed, one suspects the Council themselves might have thought as much, given their otherwise extraordinary strategic decision to try and humiliate the Secretary of State (twice) and see what happened.)

On the other hand, if Sir Keir Starmer does deliver the emergency bill his government is promising (let alone the “more sweeping legislation later this year” alluded to above), that is going to put a lot of Tory bleating about the quangocracy, the Blob, and so on into some very unflattering perspective.

Because they could always just have legislated. Or abolished the Sentencing Council, which Gordon Brown set up one month before the 2010 election. Or used their control over public appointments to prevent it getting populated by people who made no secret of their belief in the nonsense it now peddles. Or rejected its proposal to develop guidelines based on the Lammy Review. Or just not commissioned the Lammy Review.

The Conservative Party has these days a number of unearned reputations (or at least self-conceptions): being a party of low taxes, for example. But perhaps nowhere does the shadow lie deeper between the idea and the reality than on quangos.

Labour is probably, on balance, keener on setting them up and warmer to the principle; it is certainly, and not unrelatedly, better at populating and wielding them. But perhaps for that reason it tends also to be much less reverent of them. Tony Blair, informed that the ECHR required that prisoners have the vote, chose simply to ignore it.

He certainly exhibited none of the reverance for the ‘New Labour settlement’ as would Conservative ministers (perhaps by instinct cherishing any inherited thing) in the 14 years after 2010, who tended to complain very much and change very little. Even that period’s single great repeal, of the Fixed-term Parliaments Act, was of a thing the party did to itself.

The Sentencing Council needs defeating, and defeating hard. If the only reason was to establish very clearly that a body exercising powers delegated to it by Parliament cannot treat Parliament with open contempt, that would be enough.

But its proposals are also rooted in a fallacious definition of ‘over-representation in the criminal justice system’ which both perpetuates a serious and unsubstantiated charge against the State and appears to ignore disturbing evidence of real racial discrimination by jurors, perhaps because it is the wrong way round.

Yet thanks to 14 years of Conservative inattention and inactivity it will now be defeated, if it is defeated, on Labour’s terms, and whatever replaces it will have had years to bed in before, if ever, the Conservatives have another crack at power.

So if any aspirant Tory politician takes a lesson from this saga, let it be this: you can just do thing. Or, in this case, undo things.