The Conservatives are shocked – shocked! – to find that someone acted on the Lammy Review

Robert Jenrick’s campaign against the Sentencing Council’s new policy of a two-tier justice system is polished, attention-grabbing, and morally correct, which is good going for any politician in opposition. But there is an undoubted trace of Captain Renaud about it.

That isn’t a criticism, really. Renaud is an outstanding character, and in any event we expect parties that get turfed out of office to start changing their positions.

But however shocked – shocked! – to discover that racially disparate sentencing is going on in Whitehall the Conservative Party professes to be in public, it ought in private to meditate on how this nonsense came about, and what to do about it.

For the fact is that the Sentencing Council’s new ‘guidance’ (judges are obliged to follow it, so the term is inapposite) has its origins in the Lammy Review, which happened because two Conservative prime ministers – David Cameron and Theresa May – ordered an investigation into racial bias in the criminal justice system and then chose David Lammy to lead it.

At the only slight risk of being unfair to the Member for Tottenham, his selection was likely as close to predetermining the outcome of the report as either Tory leader could get. If you send Lammy out in search of racism, he will find it. To be sure, the announcement probably made them look appropriately and fearlessly modern and nonpartisan. But they must also own the substance.

Likewise, when the Sentencing Council ran a consultation on the new guidelines – one of those things which officially counts as asking the public, but in reality amounts to letting well-organised vested interests (‘stakeholders’, in Whitehallese) shape policy – the previous government did not object. Nor, indeed, did the current one.

None of this is a reason not to prosecute the campaign against this nonsense now. If Shabana Mahmood ends up legislating to overrule the Sentencing Council, more power to her elbow. But if Kemi Badenoch wants to try and prevent time bombs such as this going off under her government, she needs to think hard about how to combat the strong instinct of politicians to sign off on nice-sounding things in meetings without thinking through the consequences.

This also applies to the very existence of the Sentencing Council itself. Again, one can see the logic in how it came about: its predecessors had their origins in an attempt to bring some uniformity to sentencing – to combat the problem of the same offences getting different punishments depending on what judge was sitting and whether they had their Weetabix that morning – in a more flexible manner than mandatory sentences laid down in primary legislation.

Not an unworthy goal, to be sure. But via a similar bite-by-bite process, it has since seen Parliament hand de facto control over one of its more important prerogatives, criminal justice, over to a quango.

It would not be quite right to say that this is especially remarkable given that we have just had 14 years of Conservative or Conservative-led government; the Tories tend in practice to be much more deferential to the so-called New Labour settlement than ever was New Labour itself, even if they grumble about it much more. (It was Tony Blair who enacted the UK’s only derogations from the ECHR, and in the case of prisoner votes simply defied it for a while.)

But control for that, and it at least ought to be remarkable that the Conservative Party allowed control over criminal sentencing to fall into the hands of the people who currently constitute the Sentencing Council, some of whom had previously come into conflict with Tory ministers. How could the supposed party of law and order show so little actual interest in it?

Part of the answer, of course, is that great omni-cause: the huge reduction in the House of Commons’ sitting hours since the early Noughties. MPs, as a body, simply have less time available than once they did to pay attention to anything; the flow of powers out to quangos, regulators, devolved legislatures, and (until recently) Europe, not to mention the counter-intuitively enhanced importance of the House of Lords compared to the turn of the Millennium, were as much a practical concession to that as a deliberate constitutional programme.

That this has not changed explains why post-Brexit governments have continued setting up more and more quangos and regulators. You cannot take back control if you will not take back the time to exercise it, and any power politicians do not take the time to exercise will be exercised by someone else.