July 14, 2010: Prison Does Not Work: Ken Clarke
Lord Chancellor and Secretary of State for Justice Ken Clarke made a speech to judges at Mansion House last night. This is the concluding part of his speech.
"The most important part of my speech on sentencing was about the need now to put the emphasis on the rehabilitation of offenders. We must reduce the rates of re-offending. We must target the drug abuse at the heart of so much re-offending and crime – well over 55% of prisoners report a serious drug problem on entry to prison and nearly 70% report drug use in the year before custody.
"So we must put more emphasis on work and training, so that prisoners can literally make a payment for the costs of crime. We are intending to move to paying providers for the results they achieve by reducing the re-offending rate and reducing the commission of more offences against the public by those who have been sentenced by the court.
"We are also reviewing legal aid, defamation and civil costs as well as criminal sentencing. I apologise for so many policy reviews from a new Government, but we do not believe that the way to reform need always mean legislation.
"The new Government has ambitions going outside my Departmental policies to tackle many aspects of what the Prime Minister has called "the broken society". They all have a bearing on crime. The public are not made safer if we tolerate the continual growth of a sub-class of rootless prisoners who keep coming steadily back to the Courts and the prison gates shortly after each release.
"And changes to the law in recent years have certainly not dealt with the problem. Parliament has had great swathes of criminal justice legislation inflicted upon it. And criminal justice bills have a tendency to grow like topsy during their passage, leaving the courts to manage a criminal law the judges think nearly incomprehensible.
"It is no surprise to me that Lord Philips has taken on the garb of a theologian, describing 'hell' to be 'a fair description of the problem of statutory interpretation.'
"And I do not wonder at the Lord Chief Justice - echoing Matthew Arnold’s fine poem 'On Dover Beach' - has spoken of 'a relentless tidal wave of legislation', with 'the tide always in flow and never ebbing.'
"His frustration was absolutely clear from the report I saw of the judgment in a recent case [R v Governor of Drake hall Prison and Another]. He said that the intellectual effort, as well as the time and public resources, invested in finding a route through "a legislative morass" to what should be a simple legal issue – the date of a prisoner’s release – was outrageous.
"I share that outrage. The courts should not have to spend their time unravelling a cat’s cradle of contradictions in the law.
"I hesitate to make absolute promises about the future. But there is no criminal justice bill in the Government’s current programme of legislation. Indeed, rather than legislate, we are trawling through the statute books for pointless offences to repeal.
"But I do know that a great deal has already been achieved so that we serve justice better. We are merging the courts and tribunals services. And in recent years we have greatly reduced the proportion of ineffective trials in the magistrates and crown courts.
But my own sense is that trials last far longer than in the "past. That too much business is referred to the Crown Court when it could be dealt with using the existing powers of magistrates. And that public money and justice are not being served.
"It is true that this coincides with the need to cut costs. But it is not true that cutting costs drives my thinking. I would not ask the judges to become cheese paring accountants. Or to suffer the long drawn out war of attrition of a public spending round. But I do want to see you dispensing justice efficiently and effectively. Not being constantly frustrated at the obstacles in your way.
"So I welcome with open arms the work already going on, work looking at how we can serve justice better and what stops us doing so. The improvements made in some courts by active case management or the greater use of Goodyear indications are impressive. I endorse the efforts made across the judiciary to promote good practice across all the courts. And I will support you as you work through further change.
"The goal we all share is a justice system that works better, uses public money better and serves justice better. And it is just as clear to me that one of the most important tasks the Government must also tackle is striking the right balance between the security of the modern state and the civil liberty of the individual – an issue which Teresa May was addressing on the Government’s behalf in Parliament this afternoon.
"We have seen a steady drift towards authoritarianism in recent years – always a weakness of the left in my biased opinion. Over thirty years ago Lord Hailsham famously voiced his concern about the "elective dictatorship" under which he feared we might live. I do not doubt his anxiety would be far, far greater today.
The executive has grown much, much more powerful. Parliament and its ability to hold the executive to account has grown ever weaker. And with this drift, the state has accrued more intrusive and more invasive powers. We disregard this at our peril.
"Under the new Government, Parliament must be returned to its rightful place as the centre of public debate, the arbiter of better drafted, better thought out and less prolific legislation, and a more powerful check on the executive.
"I am equally clear that the courts have an important role in acting to check the improper use of power by the executive. And that this will remain so, especially after the birth of the Supreme Court. The invention of judicial review by my friend Harry Woolf has been developed to the extent of a powerful protection of the citizen and the rule of law. I strongly approve of it, perhaps because I am not yet as bruised by it as some of my colleagues. I have lost two minor cases in twenty years as a Minister. Nevertheless, I know I speak for all members of the government when I say to you – be gentle with us.
"My own guiding principle is contained in Robert Ingersoll’s maxim: 'Give to every human being every right that you claim for yourself'. I will, however, resist becoming too pious or self-righteous, since Ingersoll also said that he would rather smoke a cigar than hear two sermons – sentiments I also agree with quite strongly.
"My Lord Mayor, everyone here tonight has a duty to defend the rule of law and civil liberties in a free society. If I let that guide all my actions as Lord Chancellor I feel confident that I will work in close harmony with the judges, with the courts and with the legal profession. And so it is my very great pleasure to start as I mean to go on – in praising the judiciary."