At the heart of the row over Labour’s controversial attack ads targeting Rishi Sunak – beyond the obvious one about decorum in politics – is the question of who is responsible, and to what extent, for government in this country.
This is a thornier question than it might at first appear. In principle, there is a Minister or Secretary of State accountable to Parliament for every outlying satrapy of the state and the Prime Minister, as head of government, is where the buck ultimately stops.
But in an age where more and more state functions have been farmed out to quangos, regulators, and other autonomous and semi-autonomous bodies, and a culture where the very idea of power being exercised politically provokes much pearl-clutching in some quarters, that line of accountability can sometimes look rather tenuous.
I wrote about this in 2018, when Chris Grayling, then Transport Secretary, faced a vote of no confidence in the Commons after a shambolic update to the national railway timetable; the crisis was actually the work of Network Rail, and the Secretary of State’s response consisted of writing them a stern letter.
A similar angle arises in the row over Labour’s ads. The boldest of them centres on the following claim:
“Do you think adults convicted of sexually assaulting children should go to prison? Rishi Sunak doesn’t.”
Yet it turned out that not only had the Prime Minister had no input into the formulation of the relevant sentencing guidelines, but Keir Starmer probably had, for he had served on the Sentencing Council whilst serving as Director of Public Prosecutions.
The Sentencing Council is, you guessed it, “an independent, non-departmental public body” which orbits the Ministry of Justice. It consists of 14 judicial and non-judicial councillors, and is charged with developing sentencing guidelines and assessing their impact.
It’s objective, and that of the bodies it succeeded in 2010, is to try and create some consistency in sentencing whilst protecting the independence of the judiciary.
Such a body seems essential: we have a lot of laws (and thousands more by the year), and there needs to be something giving judges a frame of reference when sentencing lest we end up with perverse outcomes or a postcode lottery in justice.
Asking the Sentencing Council to review the guidance on a particular crime also gives government a softer means of trying to change it than legislating for minimum sentences, the other usual means by which Parliament can demand stringency when politicians think the courts are too lenient.
Yet much as it surprise some of Twitter’s more active barristers to learn it, a description of the process is not a defence of the outcome, and there is surely a limit to how long any government can hide behind an arms-length body when it commands, constitutionally, all the tools it needs to act.
The Government could have ordered a review of the relevant guidelines; it could also, in theory, have legislated to toughen them had the legal profession dragged its learned feet for whatever reason.
Any interrogation of whether they should will also touch upon other parts of its record, too.
For example, it’s very easy for politicians to talk about sending more people to prison, and keeping them inside for longer when they’re sent there. But one factor behind judges’ reluctance to impose jail sentences is that our existing prison estate is already hugely overcrowded, and we’re not building any new ones.
(Indeed, in his autobiography Ken Clarke talks with some pleasure about shutting in 2011 HMP Lancaster Castle, which had been recently refitted and was perfectly functional, because it seemed a bit old-fashioned to have a prison in a castle. Perhaps the MoJ should eminent-domain it back.)