The body, which sets out recommendations to courts in England and Wales, recently published new principles for them to follow when imposing community and custodial sentences, including whether to suspend jail time.
The updated guidance, which is due to come into force from April, says that a pre-sentence report will “usually be necessary” before handing out punishment for someone of an ethnic, cultural or faith minority, alongside other groups such as young adults aged 18 to 25, women and pregnant women.
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Shabana Mahmood, the justice secretary, expressed her “displeasure” at the body’s recommendations, arguing that “as someone who is from an ethnic minority background myself, I do not stand for any differential treatment before the law”.
She had recommended that the guidance be reversed, but because the Sentencing Council is independent, she cannot order them to do so.
Responding to the news that her requests had been rejected, Ms Mahmood said: “I have been clear in my view that these guidelines represent differential treatment, under which someone’s outcomes may be influenced by their race, culture or religion.
“This is unacceptable, and I formally set out my objections to this in a letter to the Sentencing Council last week.
“I am extremely disappointed by the council’s response. All options are on the table and I will legislate if necessary.”
The Sentencing Council’s decision has prompted claims of “two-tier” justice from the Conservatives, with shadow justice secretary Robert Jenrick arguing it would be “very corrosive to public trust and confidence in the criminal justice system” if enacted.
In a recent interview with Sky News, he accused the council of setting rules which make “a custodial sentence less likely for those from an ethnic minority, cultural minority, and/or faith minority community”.
“To me, this seems like blatant bias, particularly against Christians, and against straight white men,” Mr Jenrick said.
“Either this was the policy of the justice secretary – she’s changed her mind, but this was her policy – or she was asleep at the wheel.”
Following the Sentencing Council’s response, he said: “Shabana Mahmood has been humiliated by the Sentencing Council. In three days time we will have two-tier sentencing because of her and Two-Tier Keir. It is shameful they sat on their hands and chose not to legislate to prevent two-tier justice.”
In setting out the changes, Sentencing Review body chair Lord Justice William Davis said the reforms reflected evidence of disparities in sentencing outcomes, disadvantages faced within the criminal justice system and complexities in the circumstances of individual offenders.
In his letter to Ms Mahmood, he said that while it was not the role of the judiciary to introduce policies to “redress the imbalance”, those responsible for handing down sentences “must to do all that they can to avoid a difference in outcome based on ethnicity”.
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He argued that, in allowing judges access to pre-sentence reports, they will be “better equipped to do that if they have as much information as possible about the offender”.
“The cohort of ethnic, cultural and faith minority groups may be a cohort about which judges and magistrates are less well informed,” he added.
Pushing back against suggestions that providing judges with pre-sentence reports could lead to more lenient sentences, Lord Justice Davis wrote: “The crucial point is that a pre-sentence report will provide information to the judge or magistrate. It will not determine the sentence.
“Rather, it will leave the judge or magistrate better informed about the offender. Frequently the information provided will not assist the offender’s prospect of avoiding a custodial sentence: rather the reverse.”
