10th May 2015
— UK Prime Minister (@Number10gov) May 10, 2015
There is a new Lord Chancellor and Secretary of State for Justice – but what difference does this make?
In one way it is a welcome move. The previous Lord Chancellor and Secretary of State for Justice – Chris Grayling – was not a success. This was not just because of the Treasury-driven cuts: those would have affected any politician in the job, and indeed implementation of the cuts in respect of civil legal aid were the responsibility of Grayling’s predecessor, Kenneth Clarke.
But Grayling made things needlessly worse. His grand design for reforming criminal legal aid was unrealistic and botched, and the consultation had to start from scratch. Again and again the High Court found the Ministry of Justice to be acting unlawfully which, if you think of it, is a rather odd thing to happen to this particular department. Scarce departmental resources were used to promote a Bill – an extended press release dubbed the “SARAH Act” – which actually made no change whatsoever to the law of the land. And his personal stubbornness ended up with his spending £72,000 of taxpayers’ money to defend a prison books restriction which the bemused judge regarded as “strange” before quashing it.
The Ministry of Justice needs a fresh start, and it is good that it has got one.
The appointment of Michael Gove is controversial. His record at Education received (and deserved) heavy criticism. But any complaint as to his time at the Ministry of Justice should be based on what he now does as Lord Chancellor and Secretary of State for Justice, and not what he did elsewhere. After all, the basis of natural justice is not to prejudge a case, and to be dismissive of him before he even starts is also to play into the hands of his political supporters.
That said, Gove will need to be careful as to the targets he chooses and the initiatives he launches. Both the criminal and civil justice systems are in a delicate state, and the probation and prison services are already undergoing what can be euphemistically be called “change”. One wrong move and there could be a political calamity, and prisons especially can ruin a politician’s reputation: ask David Waddington, the right-winger who was packed off to be Governor of Bermuda when prison riots erupted on his watch as Home Secretary (responsibility for prisons is now with the Ministry of Justice).
News reports suggest that Gove’s first job is to repeal the Human Rights Act 1998. That is something which gets easy applause but is actually not that straightforward – not least because it is unclear what could replace it which would be any different to the fairly limp legal provisions of the existing legislation. There are also problems because of the devolution settlements: both Scottish and Northern Irish devolution have human rights protections built in the current arrangements. And the English courts have spent a good part of the last decade “developing” the common law in anticipation of repeal so as to give rights protection to citizens.
So replacing the Human Rights Act is not as simple as it seems – though supporters of human rights now need to make the case against repeal a lot better than they have done so far.
Nobody knows how Gove will fare at the Ministry of Justice. He is highly intelligent, a fluent communicator, and a cabinet “heavyweight”. In all three respects he has a marked advantage over his predecessor. On budget cuts he is in the same position as any new Secretary of State and Lord Chancellor would be in – and neither Labour nor the Liberal Democrats promised at the general election any increase in the legal aid budget.
One key question is whether the new Secretary of State and Lord Chancellor has a feel for the Rule of Law and how citizens can practically use and defend their legal rights. Legal aid and access to justice are not really about the self-interest of lawyers: the issue is how citizens can go about and rely on the court system to ensure that the law is enforced. There is no point in a legislature passing legislation if you cannot depend on those laws in the real world.
Another key question is whether the Secretary of State and Lord Chancellor wants probation and prisons policy to be an end in itself, or the means by which society becomes safer in the medium to longer term. There are currently over 80,000 people in prison, all of whom (with a handful of exceptions) are to be released back in to society. For a politician with vision, there is a chance with probation and prisons policy to make a genuine national improvement.
It may well be that this blogpost is too optimistic, and that the new Secretary of State and Lord Chancellor will be as bad as the last one, if not worse. But that doesn’t have to be the case.
What is beyond doubt, however, is that the running of the Ministry of Justice needs drastic improvement, and that this improvement needs to be quick.
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