The bill amends section 120 of the Coroners and Justice Act 2009 to require the Secretary of State’s consent before the Sentencing Council may issue any guideline as a definitive guideline. It also gives the Secretary of State an express power to refuse consent or to direct the Council to issue a guideline in an amended form, and requires the Council to issue a guideline in the form directed.
The change transfers a decisive control point in the guideline-making process from the Sentencing Council to the Secretary of State. For practitioners, courts and the wider criminal justice system the practical effect will be political control over the content and timing of sentencing guidance; for the Council it curtails the finality of its expertise-based outputs and substitutes a ministerial gatekeeper without statutory procedural limits.
At a Glance
What It Does
The bill inserts a statutory consent requirement: the Council cannot make a guideline come into effect without the Secretary of State’s consent. The Secretary of State can consent, refuse, or direct amendments; once consent or a direction is given the Council must issue the guideline in the form specified.
Who It Affects
Directly affects the Sentencing Council and the Ministry of Justice; indirectly affects judges and magistrates who rely on the Council’s definitive guidelines, defence and prosecution lawyers, and bodies that monitor sentencing outcomes (prisons, probation, victim organisations).
Why It Matters
The bill relocates final decision-making from an expert, statutory body to a ministerial office, introducing political accountability but also new procedural uncertainty because the bill sets no statutory timeline, criteria or appeal route for ministerial decisions.
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What This Bill Actually Does
The bill modifies the legal route by which sentencing guidelines become binding. Under the amendment the Sentencing Council can continue to prepare draft guidelines, but it may not make them ‘definitive’—that is, bring them into effect—unless the Secretary of State gives consent.
The Secretary of State has three distinct options: give consent, refuse consent, or instruct the Council to issue the draft in an amended form. If the Secretary of State either consents or issues an amendment direction, the Council is statutorily obliged to publish the guideline in that form as definitive.
Crucially, the bill does not specify a timeframe within which the Secretary of State must act, nor does it set standards or criteria for consent or amendment. The statutory language also does not describe a process for proposing or drafting the amendments the Secretary of State might direct, or for resolving disagreements between the Council’s technical view and ministerial policy choices.
The Council retains the obligation to issue the guideline once the Secretary of State has made a decision, but the route to that point becomes politically mediated.The bill is narrow in scope: it amends particular subsections of section 120 and adjusts cross-references so the new consent regime attaches to guidelines referred to in subsections (3) and (4). It applies only to England and Wales and takes effect on the day it is passed.
Those drafting or using guidelines should expect a new step in the production chain — a ministerial approval gate — which could change the content, timing, and legal defensibility of definitive sentencing guidance.
The Five Things You Need to Know
The Secretary of State must consent before the Sentencing Council can issue a guideline as a 'definitive guideline'; without consent the guideline cannot come into effect.
The Secretary of State may refuse consent or direct the Council to issue the guideline in an amended form; the Council must then publish the guideline in that amended form as definitive.
The bill does not set any statutory deadline or decision-making criteria for the Secretary of State’s consent, nor does it create an internal appeal or review mechanism against a ministerial direction.
The amendment is made by substituting new subsections into section 120 of the Coroners and Justice Act 2009 and by altering cross-references in subsection (10) to reflect the new consent provisions.
The Act applies only to England and Wales and comes into force on the day it is passed.
Section-by-Section Breakdown
Every bill we cover gets an analysis of its key sections.
New consent and direction powers in section 120
This clause replaces subsections (7) and (8) of section 120 with a consent regime. The new text requires the Council to obtain the Secretary of State’s consent before issuing guidelines referred to in subsections (3) and (4) as definitive. It also creates three ministerial options — consent, refusal, or direction to amend — and obliges the Council to publish a guideline in the form the Secretary of State approves or directs. Practically, this is the substantive transfer of the final decision from a statutory body to a ministerial actor.
Technical amendment to cross-references
This short clause updates subsection (10) of section 120 to add the newly inserted provisions into existing cross-references. That change preserves internal consistency in the Act but also ensures existing statutory rules linked to subsection (10) will apply in the context of the new consent and direction powers. It is a drafting fix that brackets the substantive consent power into the Act’s broader regulatory architecture.
Obligation to issue and definition of 'definitive guideline'
New subsection (8A) requires the Council to issue a guideline as definitive once the Secretary of State has consented or directed amendments; subsection (8B) defines 'definitive guideline' as one that has come into effect. Together these provisions remove discretion from the Council at the final stage: the Council must give statutory effect to ministerial choices, even where those choices alter the Council’s drafted text.
Territorial extent and commencement
This clause confirms the Act extends only to England and Wales, and it enters into force on the day it receives parliamentary approval. For operational teams this means any guideline work underway will be subject immediately to the new consent requirement once the Act is passed.
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Explore Justice in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Secretary of State / Ministry of Justice — gains final legal authority to approve, block or reshape sentencing guidelines, consolidating ministerial control over formal sentencing policy.
- Government policymakers — acquire a direct mechanism to align sentencing guidance with current policy priorities without waiting for non-ministerial bodies to act.
- Parliamentary sponsors and advocates for tougher/softer sentences — obtain a clearer route to influence the final wording and timing of guidelines via ministerial channels.
Who Bears the Cost
- Sentencing Council — loses final autonomy to determine definitive guidance and may be required to publish guidelines that conflict with its evidence-based recommendations, harming credibility and expert independence.
- Courts and judiciary — face increased uncertainty and potential politicisation of the guidance they must follow, complicating sentencing decisions and judicial planning.
- Defence counsel and defendants — risk shorter notice or politically influenced changes to sentencing rules, which can affect plea strategies, sentence expectations, and appeals.
- Ministry of Justice — takes on administrative and political responsibility for guideline decisions, including potential legal challenges and criticism for ministerial interventions.
- Criminal justice agencies (prisons, probation) — may incur operational costs adapting to altered sentencing patterns if ministerial directions change guideline-driven custody or community sentence use.
Key Issues
The Core Tension
The central dilemma is between democratic accountability — allowing an elected minister to control formal sentencing policy — and institutional independence — protecting an expert body’s ability to produce evidence-led, depoliticised guidance; the bill solves for political control but offers no mechanism to preserve the Council’s expert legitimacy or to constrain arbitrary ministerial intervention.
The bill’s most consequential feature is what it omits as much as what it contains. It creates a ministerial gate without procedural scaffolding: there is no statutory timetable for the Secretary of State to respond to draft guidelines, no published criteria against which a refusal or direction must be measured, and no internal or external appeal route for the Council or affected parties.
That gap creates operational risk — guidelines could be held in limbo, delayed, or altered for policy reasons without a predictable process, which in turn increases the risk of litigation or judicial pushback when guidelines are implemented.
Forcing the Council to issue a guideline 'in the appropriate form' as directed by a minister raises questions about evidence-based policy versus political priorities. The Council is an expert statutory body whose legitimacy rests on technical analysis and perceived independence; requiring it to publish ministerial amendments risks blurring the line between expert advice and political direction.
The bill leaves unresolved how the Council should record dissent, whether it can append explanatory material, or how courts should treat guidelines the Council is compelled to publish but does not support. Those implementation details matter for legal certainty, judicial acceptance of guidelines, and the Council’s institutional integrity.
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