Lawfare, traditionally employed by the left, was used by the right to defeat two-tier sentencing guidelines

On 5 March, the Sentencing Council published guidelines that would implement two-tier sentencing in the UK, favouring offenders from ethnic, cultural and faith minorities. The guidelines were set to take effect on 1 April. On 31 March 2025, the Council confirmed it would suspend the implementation of the new guidelines. Why the about-face?

The Sentencing Council and the Labour Party would have you believe that they resolved the problem themselves. That is not true.

Andrew Dinsmore explains what really happened.

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Andrew Dinsmore: The defeat of two-tier justice shows that right-wing lawfare can work

By Andrew Dinsmore as published by Conservative Home on 8 April 2025

Legal activism – invariably from the left – is a sad feature of our current politics. In truth, lefty lawyers have been using the court system for decades to further their political agenda.

Famously, we had Brexit litigated through the courts, and we read of deeply questionable judgments regarding immigration on an almost weekly basis. Historically, the right has not engaged in this lawfare – but the recent battle with the Sentencing Council indicates that a change in strategy may be necessary.

This battle started only a month ago, on 5 March, when the Sentencing Council published draft guidelines entitled ‘Imposition of community and custodial sentences’.

This was first raised by Robert Jenrick MP with Shabana Mahmood, the Justice Secretary, who was apparently unaware. If implemented, these guidelines would have advised judges that they should “normally” request Pre-Sentencing Reports for “ethnic minorities, cultural minorities and/or faith minority community” (without any of these terms actually being defined).

A Pre-Sentencing Report is, in effect, a “deep dive” into a person’s circumstances which can flag both mitigating and aggravating factors which go to that person’s sentence. As a result, they can cut both ways: to decrease and increase sentences. They are, however, more regularly used to decrease sentencing – hence the suspicion that, in this case, the Sentencing Council was seeking to reduce sentences for such minorities.

This suspicion was supported by the fact that the Sentencing Council’s apparent motivation for the guidelines was to reduce the perceived discrepancy in the length of sentencing between minorities and the rest of society (although admitting that the reasons for such a discrepancy were “unclear”). In other words: two tier sentencing.

This confirmed the worst suspicions of Robert Jenrick MP, and many Conservatives, who had been fighting a valiant campaign against any suggestion that the law might be applied unequally. It being clear that these guidelines did clearly discriminate on the basis of race, religion or belief, we swung into action.

I found myself being instructed by Donal Blaney of Griffin Law to take all preliminary steps required to allow him to pursue a judicial review of the guidelines, and seek an urgent interim injunction to suspend the application of the guidelines if the Sentencing Council did not do so.

The Sentencing Council and the Labour Party would have you believe that they resolved the problem themselves. That is not true – here is what really happened.

Owing to Jenrick’s campaign, the Justice Secretary finally realised that the implementation of the guidelines might result in a sub-optimal outcome when she wrote a letter, on 6 March 2025, in which she expressed her “displeasure” at the guidelines. The Sentencing Council tersely replied on 10 March essentially saying that they were not interested in her displeasure and would press on with implementing the guidelines.

They then, apparently, met on 13 March but did not invite the Shadow Justice Secretary or publish that the meeting had happened. We now know that the Chairman invited the Justice Secretary to express her concerns in writing. It took her a week to do so, sending a letter on 20 March, but the letter did not say much more than her original letter. As a result, the Sentencing Council wrote on 27 March doubling down and saying that they would be proceeding with implementation of the guidelines.

On that same day, I assisted my instructing solicitors to write a pre-action protocol Letter to the Sentencing Council arguing that:

the guidelines were in breach of the Equality Act 2010 in that they clearly discriminated on the basis of race, religion and/or belief,
there could be no justification for that discrimination,
the guidelines were therefore susceptible to Judicial Review,
the Justice Secretary would be an interested party to that Judicial Review, and
inviting the Sentencing Council to suspend the implementation of the guidelines until their legality could be ascertained.

We received a response from the Government Legal Department the next day stating that they would be defending the Sentencing Council. At this point, everything changed.

First, both the Justice Secretary and the Sentencing Council suddenly published their correspondence with one another. Next, the Justice Secretary performed a volte face and now became supportive of the idea of emergency legislation to correct the guidelines – having rejected the Conservative proposal to do that via the Sentencing Council (Powers of Secretary of State) Bill advanced by Jenrick only weeks previously.

Finally, the Sentencing Council confirmed at 7 pm on 31 March 2025 that they would suspend the implementation of the guidelines.

Game, set and match. But all very embarrassing for the Justice Secretary, who – had the Sentencing Council not backed down – would have found herself having to instruct the Government Legal Department to act for her as an interested party in a judicial review where they were also acting to defend the Sentencing Council.

Embarrassing, too, for the Sentencing Council, which would have had to see the legality of their guidelines tested in a judicial review while potentially also being subject to an injunction suspending their own decision.

The truth, therefore, is not that the Labour Party nor that the Sentencing Council suddenly came to their senses and realised the insanity of discriminating against individuals in sentencing decisions on the basis of race, religion or faith.

Rather, both were forced into action through the threat of Judicial Review, underpinned by clear and strong legal arguments, and the threat of an injunction. Clear action from the Conservatives; waffle and weakness from Labour.

So, the question is: Should the right use the left’s long-held weapon of the court system to advance its values? This episode indicates that the answer might be “yes.”

About the Author

Andrew Dinsmore is a UK barrister and Conservative councillor in Fulham. He ran as a Conservative parliamentary candidate in Hammersmith & Chiswick at the 2024 general election.

Featured image: Robert Jenrick MP (Conservative) and Shadow Secretary of State for Justice (left). Shabana Mahmood MP (Labour) and Secretary of State for Justice (right).

While previously it was a hobby culminating in writing articles for Wikipedia (until things made a drastic and undeniable turn in 2020) and a few books for private consumption, since March 2020 I have become a full-time researcher and writer in reaction to the global takeover that came into full view with the introduction of covid-19. For most of my life, I have tried to raise awareness that a small group of people planned to take over the world for their own benefit. There was no way I was going to sit back quietly and simply let them do it once they made their final move.