Sentencing veto is welcome - but the battle against the 'unelected state' has barely begun

The announcement by the Lord Chancellor Shabana Mahmood on Tuesday that she plans to legislate for Ministers to have a veto over sentencing guidelines is a win for democracy over the unelected 'Administrative State'. Two years ago, few had heard of the term "two-tier justice" - indeed Ministers and leaders across the criminal justice system have spent much of that time vigorously denying its existence.

Yet earlier this year, unelected quangocrats at the Sentencing Council published a new Guideline for the "Imposition of community and custodial sentences" which was the very essence of "two-tier justice". The new guidelines required that, when sentencing a convicted criminal, judges and magistrates would normally be required to request a pre-sentence report if the offender was from one of a whole host of different groups.

Some of those groups were reasonable, for example very young, first-time offenders, for whom a custodial sentence may well not be in the interests of justice. But the list also included criminals who were: female, or from an ethnic, faith or cultural minority group, or if they had "disclosed they are transgender".

An offender who was white or male would not, unless they could fit themselves into one of the other groupings available, automatically qualify. Pre-sentence reports, typically written by a probation officer, are key to judges and magistrates deciding whether to sentence an offender to prison or to a non-custodial community order - particularly in borderline cases. As a result, deciding which defendants automatically receive a pre-sentence report, and which don't, can be key in deciding who goes to prison and who doesn't.

At the time, the Lord Chancellor invited the Sentencing Council to reconsider their approach. In an example of breathtaking arrogance, the Council initially declined; defending their position because of "disparities in sentencing outcomes". With such a statement they revealed they had been ideologically captured: disproportionate outcomes are not on their own evidence of discrimination.

The Sentencing Council is just one of the British state's many "independent, non-departmental" bodies that give every impression of being barely accountable to anybody. Following the Council's overreach, Policy Exchange recommended Ministers take urgent action to reverse the new guideline - and to ensure that no new guidelines could be introduced without the consent of elected politicians.

Nothing in the changes announced by the Lord Chancellor today will undermine the independence of the judiciary and the court's responsibility for sentencing any particular offender. But the overarching policy choices about the sentencing framework must be taken by democratically elected politicians who are a key and undervalued safeguard against the "Administrative State".

The action by the Lord Chancellor today provides a blueprint for other Ministers who are more faint-hearted in dealing with their own departments. By ensuring power sits with those who are democratically elected rather than the unaccountable committees that have proliferated in recent decades, Shabana Mahmood has an opportunity to turn the tide against the two-tier justice which has become increasingly evident to the public.

But we should be in no doubt: it is a battle that has only just begun.

• David Spencer is Head of Crime and Justice at Policy Exchange and a former Detective Chief Inspector in the Metropolitan Police