Who governs the United Kingdom? Is it politicians who are democratically accountable, or is it judges who have no means of being scrutinised?
You may remember that the Sentencing Council issued guidelines that would effectively lead to two-tier justice, with ethnic minorities and women receiving reduced sentences via pre-sentencing reports.
The Lord Chancellor criticised the guidance and said she was willing to legislate against it if necessary.
But the Sentencing Council chairman, Lord Justice William Davis, has hit back, not only defending the two-tier justice the council intends to implement but also claiming that if ministers get involved in sentencing, they would undermine judicial independence.
Jacob Rees-Mogg shared his views on judges making decisions
GB NEWS
He is wrong. Judges are independent in individual cases, not on the policy of law, which is set by Parliament. Judges do not make the law; they apply it in a particular case.
What is and is not legal is defined by the King in Parliament, and the sentences that follow are also set and may be changed by Parliament.
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Some sentences, for example, a compulsory sentence including the mandatory life sentence for murder, are set by Parliament, but for murder, there is no judicial discretion over that.
This doesn’t affect the independence of the judiciary or the role of the Sentencing Council.
It is a coordinating body, established by Parliament to encourage, but not mandate, consistent sentencing within the limits set by Parliament, where democracy is at the forefront of our system.
He claimed that the chairman of the sentencing council is wrong
GB NEWS
Thus, sentencing is absolutely within the remit of democratically elected politicians in its broad policy, but not in its individual application.
It is part of the legislation that establishes an offence in the first place, which will set out the penalty that could follow.
The over-mighty judge has now told an elected minister that he will ignore her instructions, focusing instead, as bureaucrats always do, on the fact that he has followed process, even if his answer is wrong.
The point is that when a politician makes a decision, if the public doesn’t like that decision, they can vote the politician out of office.
But when unelected judges try to implement two-tier justice, there are no means to get rid of them.
That is why it must be the elected politicians making these major policy decisions, not the unelected bureaucratic classes.
