Independence No Longer: A Look at the Democratic Lock Over the Sentencing Council

The Government has announced the introduction of a ‘democratic lock’ over the Sentencing Council. Under the new framework, any guidelines issued by the Council will require the explicit approval of both the Justice Secretary and the Lady Chief Justice. If either withholds approval, the guidance will not be published. This change follows earlier disagreement between the current Justice Secretary, Shabana Mahmood, and the Sentencing Council regarding draft guidelines which, in her view, risked undermining public confidence in equality before the law.

This blog explores the role of the Sentencing Council, the background to this reform, and what it may mean for criminal practitioners.

What Is the Sentencing Council? 

The Sentencing Council describes itself as an independent, non-departmental public body that has the role of issuing guidelines on sentencing which the courts must follow unless it is in the interests of justice not to do so.

The Sentencing Council was established by Parliament under the Coroners and Justice Act 2009 to promote greater transparency and consistency in sentencing, while maintaining the independence of the judiciary.

Whilst historically independent, the democratic lock announced today represents a seismic shift in the sentencing guideline process, introducing political approval into what has historically been a technical judicial function. 

What Prompted This Change?

Earlier this year, the Sentencing Council proposed guidelines recommending pre-sentence reports be obtained for offenders from certain groups, such as ethnic or faith minorities, young adults, women, and pregnant individuals. The purpose of the proposed guidelines was to better understand background factors before sentencing and to reflect disparities in sentencing outcomes. The guidelines faced significant backlash, with its critics arguing that it created a “two-tier justice” system by treating offenders differently based on personal characteristics, contrary to the principle of equality before the law. 

The proposed guidelines were swiftly overturned with the introduction of the Sentencing Guidelines (Pre-Sentence Reports) Act 2025 which amended section 120 of the Coroners and Justice Act 2009 to stipulate that sentencing guidelines about pre-sentence reports may not include provision framed by reference to different personal characteristics of an offender, which includes race, religion or belief, and cultural background. 

The democratic lock can therefore be seen as both a response to this disagreement and as part of the Government’s broader “Plan for Change,” aimed at bolstering public confidence in the criminal justice system.

Equality vs Equity

The debate highlights an ongoing tension between equality and equity in sentencing. Equality demands that all individuals are treated alike under the law. Equity, however, acknowledges that differing circumstances may need to be taken into account to ensure outcomes are fair in practice.

The Sentencing Council’s original proposals appear to have been motivated by a desire to address disparities rather than to confer preferential treatment. The practical difficulty, however, is how to ensure that such background factors are considered fairly in all cases without introducing systemic inconsistencies. 

Even without formal guidelines, practitioners and judges retain the ability to consider and highlight relevant individual circumstances during sentencing. Achieving proportional and just outcomes does require balancing accountability for criminal conduct with recognition of the factors that may contribute to offending. 

Final Thoughts

This democratic lock carries both promise and risk. On one hand, it enhances political accountability over sentencing policy. On the other, it risks politicising technical guidelines that serve as the backbone for fair, consistent sentencing. 

While the Justice Secretary has stressed that individual judicial discretion will remain unaffected, the long-term impact of this reform on sentencing practice remains to be seen. Criminal practitioners should be watching closely to assess whether the change strengthens public confidence or complicates the delicate balance between equality, equity, and independence in sentencing.