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Debate has centred on the government veto of Sentencing Council guidelines. But a quieter power – the ability to shape its business plan – is equally troubling. Julian Roberts KC (Hon), a former Sentencing Council member, explains why this matters
Throughout its existence, the Sentencing Council (‘the Council’) has operated without interference or pressure from successive governments or opposition politicians. Until now. Sections 19 and 20 of the Sentencing Act 2026, which received Royal Assent on 22 January, fundamentally alter the roles of the Council and government in the development of sentencing guidance. They require the Council to seek the approval of the Lord Chancellor for its business plan and all its guidelines.
Critical commentary on these two provisions in the House of Lords (and more widely) has focused on the government’s veto over the guidelines. Yet political control over the business plan is equally troubling. This plan must, according to the statute, set out the guidelines which the Council prepares over the year, as well as all its other activities. If the Lord Chancellor has ultimate authority over this plan, the Council’s independence and expertise is clearly compromised. The government’s priorities may well differ from the Council’s more considered plans which consider the issues more widely and in light of previous work. The government deemed introduction of a political approval clause necessary to ensure that the Council is sufficiently accountable. Has the Council, as the government suggests, been insufficiently accountable to Parliament or responsive to key stakeholders?
The work of the Council, as well as its predecessor bodies (the Sentencing Advisory Panel and the Sentencing Guidelines Council) has always been subject to legislative scrutiny. Since the creation of the Sentencing Council, the Justice Select Committee has been active in examining and responding to the Council’s work. The Select Committee is the ideal Parliamentary organ to ensure legislative accountability and scrutiny of the Council and its guidelines. The cross-party House of Commons Justice Select Committee (‘the Committee’) reviews draft guidelines as they are issued by the Council, responds to consultations on those guidelines, and holds periodic evidence sessions during which Parliamentarians may question and challenge the Chair and members of the Council who appear as witnesses. The Committee has also conducted several inquiries into the Council’s work. As it noted in its 2008-09 report to Parliament, the Committee ‘provides Parliamentary comment on the guidelines by considering draft guidelines’ (Sentencing Guidelines and Parliament: building a bridge, House of Commons Justice Committee, HMSO 2009, p 3). The Chair and Chief Executive of the Council have both repeatedly appeared before the Committee; the Committee has also heard from independent witnesses as part of its development of its response to a draft guideline; has examined the work of the Council in a report on Public Opinion and Understanding of Sentencing; and has recently discussed the work of the Council with the Lady Chief Justice.
Finally, the Council has also been proactive in engaging with Parliament. For example, it held an ‘awareness’ day in Parliament to inform parliamentarians and address questions about its work. This level of Parliamentary scrutiny and engagement with the Council’s work is appropriate and seems more than adequate. In short, there appear to be no obvious ‘democratic deficit’ regarding the Council and its guidelines. Finally, the lengthy consultation period associated with each guideline ensures that all stakeholders including the criminal Bar have ample opportunity to express their views regarding any draft guidelines. Will these stakeholders continue to provide feedback to Council on its draft guidelines knowing that an elected politician is able to veto and hence overturn the results of any public consultation?
Concerns about the independence of the Council should not be taken lightly. In 2008, the Council of HM Circuit Judges made it clear in its submission to the Sentencing Commission Working Group that while it agrees that ‘Parliament and Ministers should be consulted [with respect to the guidelines,] the Sentencing Guidelines Council, as an independent body, should make the final decision’ (Response to the Sentencing Commission Working Group Consultation, Council of HM Circuit Judges, 30 May 2008). Indeed, judicial sensitivity to the lack of independence of a sentencing council or commission is the principal reason why jurisdictions such as Canada and New Zealand have declined to introduce sentencing guidelines. In a recent interview published in The Times, the Lady Chief Justice expressed her concern that the proposed legislation could undermine judicial confidence in the Council, leading to resignations of judicial members.
When introducing the Sentencing Bill in the House of Lords, Lord Timpson stated that the government was ‘keen to support the Council with its work. Following events in recent months, we are introducing a pair of measures that aim to maintain public confidence in its guidelines’ (Hansard, 17 November, Col 280). It is hard to see how ascribing politicians more control will increase public confidence in the guidelines. Notwithstanding the government’s concern, there is no evidence that the public lack confidence in the guidelines. Research by the Council in 2022 noted that ‘over two thirds of respondents who were aware of the existence of sentencing guidelines (67%) said that knowing that the guidelines existed improved their confidence in the fairness of sentencing’.
As for confidence in politicians, a nationwide survey conducted in 2024 asked the public how much they trusted a wide range of professions. Only 11% of respondents responded that they had trust in politicians who were ranked last among all 25 professions. In contrast, over four-fifths of the public expressed trust in judges.
The executive override of the Council’s work introduced by the government has nothing do with promoting public confidence in sentencing. Nor is it a matter or democratic accountability – otherwise guidelines would have to be placed before Parliament for approval. In the alternate, the government could have supported an amendment proposed by Baroness Chakrabarti who described the political approval requirement as ‘an encroachment on the independent judiciary, worthy of some of the political judge-bashing of the past.’ The Baroness went on to suggest that: ‘If the new process is not to be dropped, at the very least perhaps the Justice Committee rather than the Lord Chancellor should co-sign with the Lady Chief Justice. In any event, that committee is more reflective of Parliament than a senior member of the Executive is.’ (Hansard, 12 November 2025, col 296).
The hastily legislated political override of the Council’s workplan and its guidelines merely reflects the government’s response to pressure from the opposition bench. The new Act adopts the wording of a private member’s Bill introduced by the former Shadow Justice Secretary, Robert Jenrick who, in a private member’s Bill, proposed that: ‘(7) Before issuing guidelines within subsection (3) or subsection (4) as definitive guidelines, the Council must obtain the consent of the Secretary of State.’ In this respect, ss 19 and 20 of the Sentencing Act 2026 represent the triumph of political opportunism over legal principle and a retrograde step in sentencing guidance.
Sentencing Guidelines and Parliament: building a bridge, House of Commons Justice Committee, HMSO 2009
Public Opinion and Understanding of Sentencing, House of Commons Justice Committee, 2023
Council of HM Circuit Judges, 2008. Response to the Sentencing Commission Working Group Consultation, 30 May 2008
‘Sentencing Council judges could quit over ministerial veto plans’, Frances Gibb, The Times, 24 December 2025: (£)
Public knowledge of and confidence in the criminal justice system and sentencing: 2022 research, Nicola Archer, Megan Butler, Georgia Avukatu, Emma Williams of Savanta for the Sentencing Council
Throughout its existence, the Sentencing Council (‘the Council’) has operated without interference or pressure from successive governments or opposition politicians. Until now. Sections 19 and 20 of the Sentencing Act 2026, which received Royal Assent on 22 January, fundamentally alter the roles of the Council and government in the development of sentencing guidance. They require the Council to seek the approval of the Lord Chancellor for its business plan and all its guidelines.
Critical commentary on these two provisions in the House of Lords (and more widely) has focused on the government’s veto over the guidelines. Yet political control over the business plan is equally troubling. This plan must, according to the statute, set out the guidelines which the Council prepares over the year, as well as all its other activities. If the Lord Chancellor has ultimate authority over this plan, the Council’s independence and expertise is clearly compromised. The government’s priorities may well differ from the Council’s more considered plans which consider the issues more widely and in light of previous work. The government deemed introduction of a political approval clause necessary to ensure that the Council is sufficiently accountable. Has the Council, as the government suggests, been insufficiently accountable to Parliament or responsive to key stakeholders?
The work of the Council, as well as its predecessor bodies (the Sentencing Advisory Panel and the Sentencing Guidelines Council) has always been subject to legislative scrutiny. Since the creation of the Sentencing Council, the Justice Select Committee has been active in examining and responding to the Council’s work. The Select Committee is the ideal Parliamentary organ to ensure legislative accountability and scrutiny of the Council and its guidelines. The cross-party House of Commons Justice Select Committee (‘the Committee’) reviews draft guidelines as they are issued by the Council, responds to consultations on those guidelines, and holds periodic evidence sessions during which Parliamentarians may question and challenge the Chair and members of the Council who appear as witnesses. The Committee has also conducted several inquiries into the Council’s work. As it noted in its 2008-09 report to Parliament, the Committee ‘provides Parliamentary comment on the guidelines by considering draft guidelines’ (Sentencing Guidelines and Parliament: building a bridge, House of Commons Justice Committee, HMSO 2009, p 3). The Chair and Chief Executive of the Council have both repeatedly appeared before the Committee; the Committee has also heard from independent witnesses as part of its development of its response to a draft guideline; has examined the work of the Council in a report on Public Opinion and Understanding of Sentencing; and has recently discussed the work of the Council with the Lady Chief Justice.
Finally, the Council has also been proactive in engaging with Parliament. For example, it held an ‘awareness’ day in Parliament to inform parliamentarians and address questions about its work. This level of Parliamentary scrutiny and engagement with the Council’s work is appropriate and seems more than adequate. In short, there appear to be no obvious ‘democratic deficit’ regarding the Council and its guidelines. Finally, the lengthy consultation period associated with each guideline ensures that all stakeholders including the criminal Bar have ample opportunity to express their views regarding any draft guidelines. Will these stakeholders continue to provide feedback to Council on its draft guidelines knowing that an elected politician is able to veto and hence overturn the results of any public consultation?
Concerns about the independence of the Council should not be taken lightly. In 2008, the Council of HM Circuit Judges made it clear in its submission to the Sentencing Commission Working Group that while it agrees that ‘Parliament and Ministers should be consulted [with respect to the guidelines,] the Sentencing Guidelines Council, as an independent body, should make the final decision’ (Response to the Sentencing Commission Working Group Consultation, Council of HM Circuit Judges, 30 May 2008). Indeed, judicial sensitivity to the lack of independence of a sentencing council or commission is the principal reason why jurisdictions such as Canada and New Zealand have declined to introduce sentencing guidelines. In a recent interview published in The Times, the Lady Chief Justice expressed her concern that the proposed legislation could undermine judicial confidence in the Council, leading to resignations of judicial members.
When introducing the Sentencing Bill in the House of Lords, Lord Timpson stated that the government was ‘keen to support the Council with its work. Following events in recent months, we are introducing a pair of measures that aim to maintain public confidence in its guidelines’ (Hansard, 17 November, Col 280). It is hard to see how ascribing politicians more control will increase public confidence in the guidelines. Notwithstanding the government’s concern, there is no evidence that the public lack confidence in the guidelines. Research by the Council in 2022 noted that ‘over two thirds of respondents who were aware of the existence of sentencing guidelines (67%) said that knowing that the guidelines existed improved their confidence in the fairness of sentencing’.
As for confidence in politicians, a nationwide survey conducted in 2024 asked the public how much they trusted a wide range of professions. Only 11% of respondents responded that they had trust in politicians who were ranked last among all 25 professions. In contrast, over four-fifths of the public expressed trust in judges.
The executive override of the Council’s work introduced by the government has nothing do with promoting public confidence in sentencing. Nor is it a matter or democratic accountability – otherwise guidelines would have to be placed before Parliament for approval. In the alternate, the government could have supported an amendment proposed by Baroness Chakrabarti who described the political approval requirement as ‘an encroachment on the independent judiciary, worthy of some of the political judge-bashing of the past.’ The Baroness went on to suggest that: ‘If the new process is not to be dropped, at the very least perhaps the Justice Committee rather than the Lord Chancellor should co-sign with the Lady Chief Justice. In any event, that committee is more reflective of Parliament than a senior member of the Executive is.’ (Hansard, 12 November 2025, col 296).
The hastily legislated political override of the Council’s workplan and its guidelines merely reflects the government’s response to pressure from the opposition bench. The new Act adopts the wording of a private member’s Bill introduced by the former Shadow Justice Secretary, Robert Jenrick who, in a private member’s Bill, proposed that: ‘(7) Before issuing guidelines within subsection (3) or subsection (4) as definitive guidelines, the Council must obtain the consent of the Secretary of State.’ In this respect, ss 19 and 20 of the Sentencing Act 2026 represent the triumph of political opportunism over legal principle and a retrograde step in sentencing guidance.
Sentencing Guidelines and Parliament: building a bridge, House of Commons Justice Committee, HMSO 2009
Public Opinion and Understanding of Sentencing, House of Commons Justice Committee, 2023
Council of HM Circuit Judges, 2008. Response to the Sentencing Commission Working Group Consultation, 30 May 2008
‘Sentencing Council judges could quit over ministerial veto plans’, Frances Gibb, The Times, 24 December 2025: (£)
Public knowledge of and confidence in the criminal justice system and sentencing: 2022 research, Nicola Archer, Megan Butler, Georgia Avukatu, Emma Williams of Savanta for the Sentencing Council
Debate has centred on the government veto of Sentencing Council guidelines. But a quieter power – the ability to shape its business plan – is equally troubling. Julian Roberts KC (Hon), a former Sentencing Council member, explains why this matters
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