Give up prisons, top judge tells minister
Give up prisons, top judge tells minister
An ‘obvious potential conflict of interest’ for the Ministry of Justice
The most senior judge in England and Wales has suggested that the Ministry of Justice should no longer be responsible for running prisons. The department took on prisons and probation when it was created in 2007. Before that, the lord chancellor briefly headed a Department for Constitutional Affairs. Prisons had been run by the Home Office since 1823.
Lord Burnett of Maldon made his suggestion in a speech of welcome to the new justice secretary and lord chancellor, Alex Chalk KC MP, who took his oath of office yesterday at a ceremony in the lord chief justice’s court.
The lord chief justice told Chalk:
The functions of lord chancellor in a modern age might be thought enough to keep a minister fully occupied. The original concept of a Department for Constitutional Affairs did just that. But then along came prisons, bringing with it an obvious potential conflict of interest and problems themselves enough to consume the energies of a superhuman. That marriage may not have been made in heaven.
When political breathing space allows, the time may well have come for the role of lord chancellor to be looked at again. The question is whether the current arrangements appropriately serve the administration of justice, which is one of the building blocks of society…
Should a calm debate about the role of lord chancellor ever be held, I would be happy to contribute from the equivalent of the judicial back benches.
Burnett did not say whether he thought prisons should revert to the Home Office or go to a new department. The allocation of government business between ministries is a matter for the prime minister of the day.
It is unusual for the chief justice call for changes in the machinery of justice but Burnett has little more than two months left to serve before he retires from the judiciary and he appears to be seizing his opportunities.
Without referring explicitly to the “enemies of the people” headline, Burnett also gave Chalk a firm lesson on what was expected of him:
Despite the profound legislative changes to the role, the lord chancellor remains the constitutional lynchpin between executive and judiciary. It is the lord chancellor who is charged particularly with defending the independence of the judiciary and who solemnly undertakes to do so in the oath of office.
That entails a duty to engage publicly on behalf of the judiciary in the rare circumstances when public attacks are launched upon the judiciary as a whole or upon individual judges. It calls for lord chancellors to bring to the cabinet table not only their political experience and judgment as secretary of state for justice but also, as lord chancellor, their enhanced duty with respect to the rule of law and judicial independence.
And there were some good jokes. I had predicted that Burnett would say that Chalk was the sixth lord chancellor he had worked with in less than six years.
The chief justice went one better:
My lord chancellor, you are my seventh in just under six years, albeit one twice. You, I hope, are my last. Otherwise I would find myself, somewhat surprisingly, with something in common with Elizabeth Taylor. She has eight husbands — one twice.
But two can play at that game. “Between 1678 and 1689,” said Chalk, “there were seven lord chief justices. So we all have our rough patches.”
He admitted that his own predecessors had included some “absolute howlers” but the only example he named was Richard Rich (1496-1567).
The one discordant note in a confident speech was a list of the government’s legislative objectives — although Chalk is not the first lord chancellor to have injected a political note into the ceremony. It also gave him an opportunity to commit himself to due process and the rule of law.
This was the passage in question:
We will play our part in operationalising any immigration legislation that parliament is minded to enact. We will do so whilst being careful to provide individuals with the due process which is the hallmark of our legal system. The rule of law requires that illegality has consequences, but it also requires that individuals have the proper opportunity to make representations in their own cause.
It struck me that at least one of his cabinet colleagues would not have put it in quite the same way.
As the admired poet, activist and lawyer Pauli Murray wrote quite some time ago, hope is a song from a weary throat.
The (very) early signs are good and I SO VERY MUCH hope that Alex Chalk KC will prove a worthy holder of his dual roles.
Not one of the previous six incumbents - one of them, indeed, twice- so much as threatened to take either of those roles seriously and rather treated the entire proposition as a handy- or perhaps unavoidable and irksome- stepping stone to a more career enhancing ministry “worthy” of her/his talents.
As to prisons, Mr. Chalk is surely altogether aware of what needs to be done in order to begin at least to work towards a system we can so many of us support rather than continuing to condemn it as the domestic and international scandal it is.
And, yes, of course, let us start with the blindingly obvious and shockingly overdue reform of the stale IPP sentences.