In his first speech as Lord Chancellor and Secretary of State for Justice, the Rt Hon Ken Clarke set out the government's plans for criminal justice reform at the Centre for Crime and Justice Studies.
My lords, ladies and gentlemen, thank you very much for having me. I am delighted to be in King's College, and to face a distinguished audience for my first major speech on the subjects for which I have found myself responsible since I returned to office. Lord Douro [Chair of King’s College Council] began with quite a staggering piece of news. I normally try and fail to avoid all reminiscence about my long and much reshuffled political career, but if you have managed to get the Inland Revenue out of Somerset House, you have achieved a near miracle.
I revel not only for being in King's but I am grateful to the Centre for Crime and Justice Studies and Richard Garside.
My return to government has been surprising. These are quite remarkable days. I am very glad I didn’t retire because the recent political events have been so extraordinary and unpredictable, leading to a hung parliament which I dreaded, to a coalition government which I welcome. Like most Ministers I am a slightly displaced person. I was prepared to take office in another department, if we won, and like my entire Ministerial team we found ourselves in a department which we were not prepared for, but which I think we all very much enjoy. In my case, my career has almost come full circle because I was a practising member of the Bar, I have been Home Secretary and I find myself in subjects in which I am at least familiar and which I am steadily forming a sense of purpose about.
One reason I have hesitated to make speeches on the subject before is that it takes time to decide what policy line you're going to pursue, dealing firstly with the acute financial crisis – which the whole government has to do – but then trying to turn necessary financial stringency into some constructive and sensible policies. I don't want policy just to be determined by cuts. I did not come into politics in order to be a semi-accountant in my approach to public affairs.
I have made many speeches about the economic mess we have inherited. I have been one of the most vehement advocates of getting on top of the debt and deficit problem. That is going to concentrate all our minds across government, but it in some cases will make us much more creative.
Richard Garside referred to the quite astonishing increase in the budget of the Ministry of Justice in the last few years, which has contributed to this great deficit, but it’s not particularly this department. I was saying this morning when people were interviewing me, that the explosion and the sheer size of the state, most of its activities is in a number of areas quite remarkable. I personally don't approve of a state which takes 50% of the GDP, and in any event we can't afford it.
So one starts by not only looking at the budget but by looking at public services from first principles and deciding what it is the tax payer should be paying for. We have to face up to the question how we make savings without damaging public services, and to reconcile drastic and necessary cuts in public spending with positive policy making.
Salami slicing budgets can cause unintended damage to the public good if all you're trying to do is comply with the demands of the Treasury. So going back to first principles, how can we deal with the problems we face and provide the services that the public interest demands in a more targeted way?
My priorities are to punish offenders, protect the public and provide access to justice. They seem to me the obvious and basic aims of my office, my department, and my team of Ministers. The proposals I’m going to outline today in relation to the courts, legal aid and sentencing will have proper regard to each of these priorities.
I have already made some announcements about aspects of courts reform, because for courts and legal aid, I am confident that we can use our resources far more effectively. The one announcement I have made on the cost effective provision of buildings for the court process seems to me an obvious and early step to take.
There is no doubt that our courts sit in a large and historic estate of underused buildings. Now obviously people have got to have access to court services a reasonable distance from their home. But the courts estate we’ve actually got has developed piecemeal over many decades and in some cases still reflects how far it was reasonable for a man to ride a horse. Certainly our courts estate no longer matches where the centres of population are or where transport networks can most easily take them. Most importantly, some court buildings are significantly underused and do not have enough work to justify the cost of building and maintenance – and we have very large arrears of maintenance, as is sometimes only too obvious if you visit some of our court buildings.
Many courts do not have the standard of facilities we expect of a modern justice system. Some have no space for witnesses to sit apart from each other and the other parties’ families and supporters. Others are not properly accessible to disabled people. Still more lack suitable secure facilities for prisoners. We all know that for most people, certainly for lay people, a visit to court is an extremely unpleasant experience.
Obviously it would be nice, for historic reasons, if we could keep all of the old court buildings that we are used to across the country. But in these difficult times, an under-used and under-repaired courts estate is an extravagance we simply cannot afford. So we have identified the potential to make a one off saving of £21 million and annual savings of £15 and a half million in running and maintenance costs. These are savings we must make, and we’re now consulting about the issues posed in the closure proposals.
Financial reality should make us not only question whether we need this large and scattered estate of buildings, but should provoke us to think about whether there are more sensible ways of transacting the business of justice today.
Of course it is absolutely right that trials of serious issues are heard in a way in which we are all familiar, in open court. Witnesses can be cross-examined properly, and the public and the media can see exactly what is going on.
We are certainly not going to deny people the right to have their day in court. But do we need to force people to take a day off work to go to court for what are sometimes quite routine trips to a court building – for things like council tax arrears, TV licence infringements, procedural steps in a case leading to adjournments, for instance? I am not convinced that all minor, non-contentious cases or all stages of a case need to be heard in a traditional court setting.
We are therefore looking in to different methods of delivering justice without the need for the full grim court experience. That means using technology. And it means things like alternative dispute resolution in some areas.
Now before anybody thinks we might be going wrong here, I am certainly not going to go down the path of all-singing, all-dancing IT schemes to replace large parts of the courts system. The history of the public sector – including NOMS – is positively littered with grand, imaginative IT projects that have failed to deliver and led to appalling waste.
But I think we may be able to find sensible ways of using modern technology so people don’t always have to go to court and disputes can be resolved quickly and effectively. This is why we published a consultation last week on how we can best use the courts to meet the modern needs of local communities. That is what my colleague, Jonathan Djanogly, is going to carry through in detail over the next few months.
Legal aid reform
It is just as clear to me, turning from the matter of our scattered and sometimes redundant courts estate, that we must make major changes to the system of legal aid. I’m afraid it cannot be immune from the same searching analysis to which we are subjecting every other area of public policy and spending.
Now as I already stressed, I want to get away from salami slicing the legal aid budget. It is a painful process that does Minister, lawyer or client no good at all. Instead, I want an approach that balances necessary financial constraints with the true interests of justice.
Nobody feels more strongly than this Government about the need to make sure everyone has access to the most important aspects of justice. In particular, the poor and the vulnerable need access in cases where their liberty or key aspects of their wellbeing are at risk.
I suppose in an ideal world we would have a national legal service, in the same way as we have a National Health Service. That has been proposed from time to time in the past, and I believe it was proposed in the politics of post-War England. But ever since the last World War, anyone looking at this sensibly has had to admit that we cannot afford it, and we never have had a national legal service. We’re actually in a position where we cannot even afford the system we’ve now got.
Our legal aid system has grown to an extent that we spend more than almost anywhere else in the world. France spends £3 per head of the population. Germany; £5. New Zealand, with a comparable legal system, spends £8. In England and Wales, we spend a staggering £38 per head of population.
I recently met my New Zealand opposite number, who was struggling with the problem of controlling his legal aid budget. I pointed out that it was only 20% of our own.
So there is good reason for having a hard look at our legal aid system. That means asking basic questions about what access to justice means and what part of that access it is right to expect the state to provide and taxpayers to pay for.
When is it reasonable to say to someone, you really can afford to pay for that yourself, or you really should have insured yourself against that unlikely legal event? Of course I understand the right and desire of people to use the law to settle disputes and to assert claims. But what is the balance between the assertion of rights and the responsibility to accept the burden of using your own resources to assert them? It may be that people sometimes have to pay more of their own legal costs than has been the case in some areas of the law in the recent past.
We are always going to have to provide legal aid for criminal cases. But it must be means tested. I cannot believe it is right that 1% of criminal cases, the so-called ‘very high cost cases’, consume 50% of the Crown Court legal aid budget.
Nor am I convinced that in many private family cases the traditional adversarial system is necessarily best for the parties involved or the best use of public funds. In the worst cases, bitter disputes between spouses and partners are actually, in my opinion, made worse by repeated and fruitless battles between lawyers in court hearing after court hearing. Might we be better off focusing more on better and less legalistic ways of seeking to resolve highly charged emotional disputes between former partners in broken relationships? At the moment the usual approach is the adversarial court battle and legal aid for lawyers on both sides.
A review chaired by David Norgrove is underway to search for more civilised ways of handling disputes over children, property and some of the most important human aspects of peoples’ lives.
So we will be carrying out a fundamental reassessment of legal aid over the coming months and then asking for people’s views in the autumn. I am only too conscious that legal aid is a key part of the income of the legal profession, who are key defenders of justice and the rule of law. Of course citizens wish to press their claims and assert their rights. But it is justice itself that matters. It is justice in the public interest that matters. We must spend what the taxpayer can afford on legal assistance only on those issues where the public interest requires it.
Punishment and protection
Let me now turn to my thoughts on the contentious issue of how we punish offenders and protect the public – as I’ve already said, two of the most important priorities of all our work in the Ministry of Justice.
It seems to be a truism that everybody starts from the proposition that the first job of the Ministry of Justice is to protect the public and punish wrong doers and criminals.
But I said soon after I was appointed that I was amazed that the prison population has doubled since I was Home Secretary in the early 1990s, which is not so very long ago. It stands at more than 85,000 today. This is quite an astonishing number which I would have dismissed as an impossible and ridiculous prediction if it had been put to me as a forecast in 1992.
Sentencing should not be based on costs. So far as I am concerned we are not going to approach sentencing matters in this country on the basis of cutting costs. Sentencing should be based on the principles of retribution, reflection of public anger and the effective prevention of further crime. But we certainly shouldn’t ignore the fact – the taxpayer certainly doesn’t – that it costs more to put someone in prison for a year than it does to send a boy to Eton. The taxpayer is providing keep and accommodation for Her Majesty’s guests – in grossly overcrowded conditions – at expensive hotel prices for 85,000 people.
How has this come about? Well in recent years, political debate on law and order between rival parties has rather tended to be reduced to a numbers game. Do we have more police officers? Have we put more people in prison for longer? Have we thrown more money at a particular problem? Sometimes it seems to me that the measure of success has been solely about whether a Government has spent more public money and locked up more people for longer than its predecessor did in the previous years.
The consequence of that is that more and more offenders have been warehoused, sometimes in outdated facilities, and we spend vast amounts of public money on a growing prison estate and ever more prisoners.
Contrary to what the Financial Times has apparently reported this morning, we haven’t stopped doing that. We are still placing contracts for new prisons.
But has proper thought has been given to whether this is really the best and most effective way of protecting the public against crime – which is what we should all be concentrating on?
How do we best go about improving the safety and protecting the property of honest citizens in the most cost effective way for the taxpayer?
I don’t doubt that certain forms of crime have fallen in recent years as the prison population has exploded. But have they fallen because more people are in prison? Some forms of crime actually appear to have increased. What we call anti-social behaviour shows no signs of vanishing. Where crimes against property do appear to have fallen, is that because more people are in prison, or because there was less temptation to live by crime during a period of economic boom?
One thing I ask you is: do the public feel any safer as a result of this huge increase in the population? In my experience, I think not. People are still worried about the level of crime. Indeed, in fighting the recent election it was clear that crime remains one of their top three concerns – up there with immigration and the economy.
Now a great mass of grave academic and social research has produced arguments on both sides as to whether more prison produces less crime. My judgement is that there is no simple and conclusive answer. You can’t actually prove it either way. I am sure that prison is the necessary punishment for many serious offenders. But does ever more prison for ever more offenders always produce better results for the public? Can we carry this argument on ad infinitum? I doubt it.
We have many more people in prison than many other countries which have lower crime levels than our own. We have actually one of the highest crime rates in Western Europe, and we have one of the highest prison populations.
I think it is too simple just to argue about tougher sentencing or softer sentencing – both of which have fervent advocates. That might make for a good headline, but I believe in intelligent sentencing, seeking to give better value for money and the effective protection that people want.
There are some very nasty people who commit nasty offences. They must be punished, and communities protected. My first priority is the safety, as I keep saying, of the British public. That is what my department is for.
But just banging up more and more people for longer without actively seeking to change them is, in my opinion, what you would expect of Victorian England.
It is time we focused on what is right for today’s communities.
Too often prison has proved a costly and ineffectual approach that fails to turn criminals into law-abiding citizens.
Indeed, in all of our experience, in our worst prisons it produces tougher criminals. Many a man has gone into prison without a drug problem and come out of prison drug dependent. Some petty prisoners can meet up with some new hardened criminal friends with whom they associate on release.
Reoffending has been rising again in recent years. It appears to be up by about 8% for adults between 2006 and 2008. It is astonishing that nearly half of offenders sent to prison are reconvicted of another offence within a year of their release. More than half of the crime in this country is committed by people who have been through the prison system. The rate of reoffending is even higher – 60% – for the 60,000 prisoners who serve short sentences each year.
That doesn’t actually surprise me. It is virtually impossible to do anything productive with offenders on short sentences. And in the short time they are in prison many end up losing their jobs, their homes and their families. That is why this Government, as I will explain later, has committed to a full review of sentencing policy to ensure that it is effective in what it is supposed to be doing – deterring crime, protecting the public, punishing offenders and, the part where we’ve been failing most, cutting reoffending.
We want a far more constructive approach. This means prisons that are places of punishment, but also of education, hard work and change. It means rigorously enforced community sentences that punish offenders, but also get them off drugs and alcohol abuse and into employment.
The voluntary and private sectors will be crucial to our success. We want to make far better use of their enthusiasm and expertise to get offenders away from the revolving door of crime and prison.
The most radical part of our new approach – what some of my colleagues call the ‘Big Society’ – will involve paying independent organisations by results in reducing reoffending.
Outside bodies would have clear financial incentives to keep offenders away from crime. And success would be measured perhaps by whether they find and keep a job, find housing and so on – whether they become functioning members of society – but above all by whether they are not reconvicted within the first few years of leaving prison.
We are still developing this. My colleagues – Jonathan Djanogly, Crispin Blunt and Tom McNally – and I are going to try to turn it into a practical, clear policy we can implement.
The intention in opposition was to pay for this new approach through the cash savings it was hoped it would generate for the criminal justice system. In Government, we intend to pursue this virtuous circle: reduced reoffending, fewer victims and value for money for the taxpaying public.
I share the enthusiasm of my Ministerial team about some of the things that are happening now, including the work proposed to start soon on Social Impact Bonds in Peterborough Prison. We have already arranged to pay the social investors there if and only if they reduce the reoffending of short sentenced prisoners.
But eventually our aim is to expand payment by results to other groups of offenders. We want to encourage third sector organisations to grow so they can support more and more people, and work to turn around more and more lives.
This radical new approach to prisons and rehabilitation will come to nothing if it isn’t supported by a clear, coherent sentencing framework.
In my opinion, the current legal framework is over complicated, confusing and somewhat disingenuous.
Sentences pronounced in court often bear no clear resemblance to the time actually served in prison, and they are not clear explanations to the public and to the victim of the penalty that is actually being imposed.
It creates a sense of injustice when criminals spend much less time in prison than specified by the court. And it undermines public confidence in criminal justice. That must be changed.
Sentencing needs to be consistent, honest and transparent for the public, for victims of crime and for people working in the system.
So the Government will look in more detail over the coming months at the sentencing frameworks for adult and young offenders, as well as the full range of penalties available in the criminal justice system.
We will explore in particular proposals to restore public trust through minimum / maximum sentencing. Under this system, offenders would serve a minimum period in prison set as the minimum punishment by the judge in court. They would not be eligible for release before then. The judge would also set a maximum period, and offenders would have to earn any release before that point.
This will also give us the chance to look at whether we’ve got the balance right in recent years between ensuring a certain level of consistency in sentencing across the country, while giving judges the discretion they need to consider all the evidence that they hear of the circumstances of the case. We now have sentencing guidelines of a kind we did not have before. How far have sentencing guidelines been an aid to consistent justice? And how far are they in danger of becoming an over rigid response to what is actually a wide range of circumstances in individual cases?
I think it’s fair to say I have a great deal of faith in judicial discretion. The difference between a judge and a member of the public or a politician is that judges listen to hours and hours of evidence before they make a decision. In a particular case, they actually know far more about the detail of a case, far more about the evil of the offender than we ever could just by reading the red tops.
So our assessment will look at sentencing generally, sentencing guidelines, and also at community penalties as well as imprisonment. These are a crucial part of the sentencing framework. They can be a tough, effective way of making offenders turn away from crime and protecting the public. I am aware that for years successive Governments have tried to make community penalties more tough and effective. I’m also aware that the public are still not convinced that they are as effective as prison.
It is not a new problem at all. It was a problem when I was at the Home Office all those years ago. But we really have to address this. We also have to ensure that the form of community penalties we’re using are doing the job, and that they are as effective as prison and more effective if used in the right cases.
Now those magistrates and judges among you know far better than I do how – and indeed whether – we are getting nearer to the desirable goal of having tough and effective community penalties.
I want to hear the views of the judiciary and the citizen JPs who dispense justice in our magistrates’ courts.
When you have handed out community penalties, have you found them to be effective? If so, which ones? If not, why not? What was wrong with them?
Are all the orders you would like to impose available in your area of jurisdiction? Which ones would you like to see more of? Which have you found to be most effective?
I’m afraid I certainly cannot promise that we will be investing vast amounts of public money into non-custodial sentences across the country. This is simply not possible in the present financial crisis. But I would genuinely like to hear what those people most responsible for the punishment of crime think about how the system is working and whether it needs to change.
If we can’t make necessary improvements now with the money available, we will think carefully again about how we could encourage other partners and other people in the community to help – perhaps, yet again, through the payment by results system I have already mentioned.
These are my first thoughts on entering office. I find it an absolutely fascinating field. The reason I enjoy this role is not because it takes me back to my roots as a lawyer, but because I am engaged in a very serious subject, one which actually matters to society and the fabric of society. And I am conscious of being charged with very serious responsibilities in the areas upon which I have just touched.
We are rightly proud of the justice system in this country, even if many of us are critical of many of the details. It is actually crucial to the creation and preservation of a safe and civilised society.
Spending more and more of other people’s money to try to prove that you are tackling a problem is, I am afraid, a favourite habit of too many politicians. It is a bad habit that I have always tried to avoid. But spending less if you have to must not mean damaging criminal justice, and if we are sophisticated and intelligent in what we do we will not cause harm.
In fact, we want to be so radical that we spend less and do things better at the same time. We want to improve the way we punish offenders and protect the public.
We hope to set out more detail in a Green Paper in the autumn and then to establish through consultation an effective and honest approach to sentencing and a radical new approach to rehabilitation. We hope it will lead to a coherent package of legislation perhaps in the second Parliamentary session.
So I believe today marks a change of direction; undoubtedly it is a break with the recent past.
In my opinion the failure of the past has been to use tough rhetoric and to avoid taking tough decisions that might prove unpopular in the short term. I am determined to make the right decisions. And I hope to deliver results that will deserve your support.