The government has threatened to override the body advising judges in England and Wales in a row over how ethnic minority offenders should be sentenced.

It comes after the Sentencing Council refused a request from the justice secretary for it to rethink new instructions for judges due to take effect next week.

Under the rules, judges will be expected to consider the lives of offenders from ethnic minority and other backgrounds before deciding on punishment.

The guidelines have prompted a “two-tier” justice row, with critics arguing certain groups of people will be less likely to go to prison for a crime.

Justice Secretary Shabana Mahmood said she was “extremely disappointed” the council had refused her request for the guidance to be changed.

“All options are on the table and I will legislate if necessary,” the Labour minister 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,” she added.

Conservative Shadow justice secretary Robert Jenrick, who also opposes the guidelines, said the threat of passing a new law had come “too little too late”.

The updated guidance, due to come into effect on Tuesday, says judges should normally request a pre-sentence report on offenders from an ethnic, cultural or faith minority before deciding on their sentence.

The guidance also said the reports should be commissioned before sentencing other groups, such as young adults aged 18 to 25, women and pregnant women.

These reports contain information about an offender’s background and are intended to help judges decide what sort of punishment is appropriate.

But Jenrick hit the headlines earlier this month when he argued the new guidelines would make prison sentences “less likely” for ethnic minorities – something the council denies.

Mahmood had a meeting with Lord Justice Davis last week and set out in a letter that government policy opposes “differential treatment” based on race or ethnicity in the courts.

In correspondence published on Friday, council chair Lord Justice Davis said the council has decided the guidelines “did not require revision”.

“The council respectfully disagreed with the proposition that the list of cohorts in the guideline represented an expression of policy.

“In providing a list of cohorts, the council was and is only concerned with judges and magistrates being provided with as much information as possible.”

He said the council agreed any systemic issue relating to ethnic groups is a matter for policy, adding: “Any judge or magistrate required to sentence an offender must do all that they can to avoid a difference in outcome based on ethnicity.

“The judge 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.”