David Gauke is a former Justice Secretary, and was an independent candidate in South-West Hertfordshire at the 2019 general election.
It is now a month and a day since Dominic Raab resigned as Justice Secretary and Alex Chalk was appointed in his place.
It is no secret that it was a change that was widely welcomed by Ministry of Justice officials, the judiciary and many involved in the criminal justice system. This partly reflects the reality that Raab is not always an easy person with whom to deal (and it is not my intention to re-open that particular debate) but also a genuine sense that Chalk is well-regarded.
In taking the post of Justice Secretary and Lord Chancellor, the Cheltenham MP has many advantages. He is a lawyer, and one with a background in the criminal law (I can think of one recent Lord Chancellor with a legal background, but whose experience of the criminal courts consisted of some work experience for a high street solicitors’ firm while at sixth form…but that is enough about me).
Chalk had also served as an effective member of the Justice Select Committee and been an impressive junior minister in the department as well as being Solicitor General. He deservedly has a reputation for being bright, conscientious, likeable and decent.
This counts a lot for most Ministerial roles, but is particularly important for the Lord Chancellor element of his position. The governance of His Majesty’s Courts & Tribunals Service requires a good working relationship between the Lord Chancellor and the Lord Chief Justice, which I am sure that Chalk will have already achieved with the personable Lord Burnett. Burnett retires at the end of September – having seen off five different Lord Chancellors (one of them twice) – and building a good relationship with his successor will be a priority for Chalk. Given that the senior judges already speak highly of him, this should not be a problem.
Chalk will not, however, be given a free pass. Court delays are a real problem and, if the intention is for the Government to fight the next election on crime, a political vulnerability. We can debate whether the fault lies with austerity or the pandemic, but the political reality is that the Government will get the blame if the system is not seen to be working. Chalk is a fiscal conservative, and not instinctively in favour of throwing money at every problem. But this attribute might help him persuade the Treasury that additional resources would be used effectively.
He would also win a lot of respect from much of the legal world if he abandoned Raab’s Bill of Rights Bill, as looks likely. He might also take the time to set out the difficulties of leaving the European Convention on Human Rights. There are clearly some who favour our departure, but who have not even begun to understand the difficulties this would create for Northern Ireland. Sounds familiar? A speech from the Lord Chancellor spelling out the realities would be timely.
The most high profile part of his brief, however, relates to prisons and probation. All Justice Secretaries face a choice in terms of strategy because they are usually defined as being either liberal reformers or as authoritarian populists. Or, if you prefer, soft on crime or on the side of the law-abiding public – letting them all out or locking them all up. Such definitions are crude and rarely reflect a more complex reality but, in terms of sending a clear signal to the Ministry, HM Prisons and Probation Service and the wider criminal justice system, it is usually necessary to pick a side.
Taking a hard line on crime has its rewards. Polling suggests that the public is supportive of longer sentences for almost every offence, not least (but not exclusively) in the Red Wall. Many of the newspapers will cheer on any Justice Secretary who promises to crackdown on whatever particular crime is in the news at that particular time.
There are, however, some problems. For a start, there is no room in our prisons for anymore prisoners. Strictly speaking, there is currently spare capacity of 957 places, with figures last week showing that the prison population is now above 85,000 for the first time since 2017.
When I say “spare capacity”, it is already the case that a large number of cells built by the Victorians for single occupancy are shared, sometimes by even three in a cell. The prison population has increased by 5,000 in the last year, and it would not take much (such as a prison riot taking a couple of wings out of use) for any spare capacity to be lost. Already, emergency measures have been in place since February to make use of police cells, judges have been formally advised to use alternatives to custody, and there has been an accelerated transfer of prisoners to open prisons.
It might be tempting to think that taking a hard line on prisons only has an impact in a few years’ time. In practice, judges appear to respond quite quickly to the political mood music determined by the Justice Secretary when it comes to whether or not to make use of custodial sentences. Chalk’s rhetoric can make a difference.
There is not just a practical point. I mentioned earlier that Justice Secretaries tend to be categorised as either liberals or authoritarians. The public may supposedly back the authoritarians, but those who take a close interest in these matters generally do not. Those most acquainted with the evidence of how best to reduce reoffending, or familiar with the fact that the UK is an outlier as a western European nation in the numbers we lock up, or even those who recall that prison numbers under Margaret Thatcher were generally below 40,000, overwhelmingly question a “prison works” approach.
Even the Prime Minister in office at the time we began the surge in imprisonment, Sir John Major, has now raised his concerns in a brave and thoughtful speech.
Of course, some politicians revel in taking positions which upset the “liberal elite”. But to take such an approach one has to genuinely believe that the more populist position is the right thing to do or not really care about the consequences and Chalk is neither a natural populist nor an opportunist. Furthermore, sitting on a constituency majority of just 981, he will be well aware that this is likely to be his last Ministerial job. He is a young man with a long post-Ministerial career ahead of him; he will not want to diminish his reputation.
What might this mean? He will have to tread carefully, but a good first step would be to abandon his predecessor’s approach to the parole board, which already involves the Justice Secretary intervening on individual cases on transfers to open prisons and legislating to give a veto on prison releases.
He could look again at short sentences. I wanted to scrap them – they are counter-productive in reducing reoffending and cause a great deal of disruption to prisons. Focus instead on strengthening probation and delivering non-custodial sentences, with greater use of electronic tagging. Within the prison system, get more prisoners into open prisons and allow more of them to be released on temporary licence (ROTL) so that they can get used to working (we need the workers, after all).
There is a limit to what can be achieved as Justice Secretary in eighteen months, as I can testify, but Chalk is capable of achieving much in setting a new tone and greater ambition to deliver prison reform. He should seize the opportunity.