The recent disagreement between the Lord Chancellor and the Sentencing Council has raised questions about how the Council develops its guidelines, and how much input the Government currently has into the Council and those guidelines. This ‘Explainer’ summarises the ways in which the Council engages with the Government, Parliament and the wider community, and as such is intended to provide helpful context for analysing any proposed changes.
To begin, it is worth noting that before the introduction of sentencing guidelines, the Court of Appeal was the only source guidance for courts at sentencing. Neither the Government nor Parliament had any input into the work of the Court of Appeal or the nature of its guidance to sentencers.
In addition, the Lord Chancellor appoints half the members of the Sentencing Council, whereas the Government has no influence over appointments to the Court of Appeal or Supreme Court. In these ways, the Government has greater input into how the courts are guided, and by whom, than in the pre-guidelines era.
Consultation with the Government
Prior to issuing any guideline, the Sentencing Council is obliged to consult the Lord Chancellor, such persons as the Lord Chancellor may direct, the Justice Select Committee of the House of Commons; and such other persons as the Council considers appropriate. This is set out in the Coroners and Justice Act 2009 (“the Act”), in provisions which were specifically designed to ensure adequate engagement between the Council, the Government, and Parliament.
The Act also provides that the Lord Chancellor may propose to the Council that guidelines be prepared or revised in relation to any specific offence, category of offender or any matter affecting sentencing. Section 124(1) stipulates the following:
(1) The Lord Chancellor may propose to the Council—
(a) that sentencing guidelines be prepared or revised by the Council under section 120—
(i) in relation to a particular offence, particular category of offence or particular category of offenders, or
(ii) in relation to a particular matter affecting sentencing;
Such a request may trigger a new draft guideline and a subsequent public consultation, albeit one focused in the specific area of contention. Council retains the power to decide whether it will revise one of its guidelines in response to a proposal from the Lord Chancellor or the Court of Appeal. According to s. 124(5) of the Act, ‘If the Council receives a proposal under subsection (1) or (3) to prepare or revise any guidelines, it must consider whether to do so.’ This provision helps ensure the independence of the Council.
Along with other stakeholders, the Lord Chancellor and Parliamentarians may also provide input into the development of guidelines by responding to public consultation. Although not required by law, the Sentencing Council conducts a three-month consultation exercise open to all.
Finally, a representative of the Lord Chancellor attends and participates in all Council meetings in order to ensure effective communication between the Council and the Ministry of Justice. This arrangement is designed to ensure that the Lord Chancellor, the Ministry of Justice and the Council are well aware of each other’s activities and priorities and can address any potential conflicts as soon as possible.
The situation in which a change of government takes place between the consultation process and the publication of a new or revised guideline has not previously arisen, and is not covered by any provision of the Act or elsewhere in law. In these circumstances, it is open to the Council to re-open consultation, but Parliament has not created any legal requirement to do so.
Parliamentary Oversight
In addition to its consultation with the Government, the work of the Council, and its predecessor bodies, has always been subject to scrutiny by the legislature. Since the creation of the Sentencing Council, the Justice Select committee has become more active in examining and responding to the Council’s work. The cross-party House of Commons Justice Select Committee reviews and responds to draft guidelines, including the recent draft Imposition guideline. The Committee also holds periodic evidence sessions during which Parliamentarians may question and challenge the Chair and staff of the Council who appear as witnesses.
The Committee has also conducted more over-arching inquiries into the Council’s work. In 2008 the Committee declared its intention to ‘review sentencing guidelines in the wider context, seeking thereby to enhance the quality of scrutiny.’ And in recent years, the Committee has played a significant role in this regard.
The Public and Key Stakeholders
Although not required by law to do so, the Sentencing Council conducts a public consultation exercise of any draft guideline. Consultations are generally open for three months; the draft Imposition guideline generated almost 150 individual and group responses. The Council also conducts and publishes research into public views of its guidelines, the findings of which are then considered as the Council constructs a definitive guideline. Once the consultation period closes, Council discusses responses and amends the draft guideline. A final, definitive guideline is then published, along with a detailed document in which the Council responds to the respondents. The Council also engages with sentencers. The over-lapping membership of the Sentencing Council and the Court of Appeal promotes a co-ordinated arrangement. Draft guidelines are also ‘road tested’ with practitioners to identify any potential objections to content or format.
These consultation procedures provide stakeholders with the opportunity to respond to draft guidelines before they become definitive. As a result, every guideline may reasonably be described as a product of an open and transparent process which includes a robust public consultation exercise.
To summarise, under current arrangements, the Council’s guidelines are a product of a process of consultation and engagement with key stakeholders, the general public, the Government and Parliament. The sovereignty of Parliament means that it is open to them – and in practice, the Government – to change these arrangements, but a clear understanding of the current law and approach is likely to enhance the debate.
