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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.
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Transcribed by the Official Shorthand Writers to the Houses of Parliament:
W B Gurney & Sons LLP, 10 Greycoat Place, London, SW1P 1SB
Telephone Number: 020 7960 6089
Rt Hon Sir Alan Beith, in the Chair
Mr Robert Buckland
Mrs Helen Grant
Mrs Siân C James
Mr Elfyn Llwyd
Mrs Linda Riordan
Witnesses: Rt Hon Kenneth Clarke QC MP, Secretary of State for Justice and Lord Chancellor, gave evidence.
Q1 Chair: Welcome, Lord Chancellor; welcome to your new position, and welcome to your first time at this Committee. We just have to declare interests before we launch into questions, so forgive us while we do that. I do not think you are obliged to do so yourself.
Mr Clarke: No, my interests are well known. Congratulations to you on your newly elected role – I think you were unopposed – and on the formation of the new Committee.
Chair: Thank you. We will just go round the table for anyone who needs to declare an interest.
Karl Turner: My interests are as per the Register of Members’ Interests. In addition, before being elected to Parliament, I was practising from the local chambers in my constituency.
Mr Buckland: Chair, my interests are as per the Register of Members’ Interests.
Mrs Grant: I declare my interests as per the Register and in particular Legal Aid.
Mr Llwyd: I have a similar declaration to make.
Jessica Lee: I draw attention to my declaration in the Register and in particular in respect of Legal Aid payments.
Anna Soubry: In addition to the Register, I am also a criminal barrister who prosecutes, defends and is instructed by the Probation Service.
Yasmin Qureshi: Before coming to the House I was a practising barrister and received payments from the Legal Services Commission, from the Crown Prosecution Service as well as the Probation Service and I was also formerly a Crown prosecutor as well.
Q2 Chair: Lord Chancellor, you will see those interests reflected in the choice of Members questioning on Legal Aid. They will come through a narrower field of those not working in that field. You are engaged, like most Ministers, in the process of working out how you can cut the costs of your Department. The National Audit Office said that the MoJ had an incomplete knowledge of the cost of its activities and policy proposals. Are you confident you have the information you need to make informed cuts?
Mr Clarke: Yes, I do think we have enough information, though of course, as always when you are doing a Public Spending Round what you are trying to do is make projections for the full Public Spending period so, particularly in a rather demand-led Department like this one, you are making the best projections you can of likely demands on the Court Service, Prison Service and any other part of our services. So it does not entirely depend on the audited accounts from previous years. So far as the NAO’s criticisms are concerned, they obviously pre-date my period of office, to begin with, but the Department does accept those and is seeking to tackle them, and some areas are obviously of interest to us in the course of looking ahead on the spending policy when it comes to, for example, collecting a higher proportion of the fines imposed by courts.
Q3 Chair: It was a criticism partly about the Department’s awareness of the cost of some of the functions it performs. In looking at cuts, have you resisted the idea of salami-slicing through the Department in favour of looking for whole areas in which there could be either drastic cost reductions or a withdrawal from an area?
Mr Clarke: Yes, my ministerial team and I are extremely anxious to do that. We all accept that there is a need for really quite drastic cuts in public spending compared with ordinary, previous experience but it is quite important, if you are doing that, to do it alongside sensible policy formation. We are not trying to undermine the objectives of the Department. None of them are driven solely by cuts but, as it happens, we are looking at this year’s Public Spending Round at the same time as we are reviewing sentencing policy, family law, and in looking at Legal Aid, where we are trying to save money, we are, as it were, going back to first principles and asking ourselves what public money should be spent on. What is the public interest in providing justice and satisfying the public that justice has properly been done, even to people who are not able to finance their own representation and so on? I think probably most Ministers across the Government I hope would answer "yes" to your question that we are avoiding salami-slicing. We are trying to address policy and actually the result is that the Government is producing an awful lot of reviews and an awful lot of policy announcements as background to a spending review which still has quite a long way to go.
Q4 Chair: While this process goes on, obviously, you are resisting or preventing new expenditure in various areas but this can have rather difficult consequences. One example that we have been given is the Intensive Fostering programme, which, because it is a nine-month programme, is therefore run for such a period that it is covered by knock-on new referrals. Is there not a danger here that very necessary programmes which you are unlikely to want to strip out at all cease to be available to the people who most need them?
Mr Clarke: Yes, it has to be evaluated. We still have to assess that programme, and the intention was to evaluate it and in particular, obviously, it would be interesting to see how far it had measurable effect on reducing offending, reducing re-offending, and getting people settled into a stable and regular way of life. Do people fare better coming out of intensive fostering in practice compared with normal fostering? As you rightly say, at the moment we are looking at it alongside the Public Spending Review and our rehabilitation agenda and generally.
Chair: We are going to turn to Legal Aid now.
Q5 Chris Evans: The Ministry of Justice said in June there would be a fundamental reassessment of Legal Aid and the proposals include the need for insurance, means testing and handling family cases outside the adversarial system. In a recent speech you spelt out your plans but you did not exactly say what the system would look like. How would an insurance element to Legal Aid operate? Would it be a private scheme where people could pay into a private policy or would it work along the lines of a mandatory state scheme like National Insurance?
Mr Clarke: One theme that is going to run through this particular session, which I am sure the Committee predicts, is that we are at the moment actively looking at these things, with the result that I am not going to be able to answer specific questions about what we will do on this bloc of Legal Aid. It is exactly what we are looking at at the moment, but we have, as you rightly say, trailed some of the approaches we are taking. Jonathan Djanogly, who is the other Minister in the Department involved in this, is I think going to meet the ABI to discuss the insurance element, what somebody of ordinary means can expect to insure for. There are various legal risks that most of us insure for now, almost without noticing, as part of our household policies but there are other countries where it is more routine to take on that kind of insurance at quite modest cost because, fortunately, the risk of litigation is quite a low level of risk for most ordinary people, and we do want to address the question of what insurance cover could reasonably and affordably be made available to a broad section of the population if people were prepared to market it and offer them, as most members of the public in this country have a mortal fear of ever being involved in expensive litigation, the opportunity of perhaps preparing for that as part of the ordinary insurance of a family.
Q6 Chris Evans: On the flipside of that, what would happen then if you had somebody appearing in court who had not taken out any form of insurance? How would you deal with those? Would that increase costs in the long run, do you think?
Mr Clarke: If we do reduce the scope of Legal Aid and decide there are categories of case – and this was decided by the last Government at various stages, as they tackled the rapidly escalating Legal Aid bill. Around the turn of the century they took personal injuries out of scope. If we do any more of that, we have to look at how we can advise people reasonably to offset what we have done by making some provisions for themselves. It is all part of getting people to accept that the taxpayer simply cannot underwrite what may be the legal bills of every citizen who has not thought of quite how they are going to cover it when some disaster occurs that starts getting them involved in litigation, and you encourage the taking out of insurance, which, as I say, is more habitual, I think, in some countries.
Q7 Chris Evans: I know you are not going to give firm proposals today but I was wondering, are you thinking along the lines of different levels of cover, as you would if you were taking out car insurance, for example?
Mr Clarke: We are not thinking of setting up – not at the moment – some sort of specified level of stakeholder insurance or anything. Insurance is a marketed service in this country. We are trying to find out what is feasible, what might be offered by the insurance industry, which is why we are going to have discussions with the ABI.
Q8 Claire Perry: Lord Chancellor, I have a Legal Aid question with reference in particular to your speech on 30 June. I was very struck by how unbelievably expensive our Legal Aid system is compared to everywhere else in the world. Indeed, you quoted that we spend £38 per head on Legal Aid per annum, France spends £3 per head, Germany £5, and New Zealand, which has a comparable legal system, only £8 per head. I would be very interested to know what work your Department is doing on the underlying cost drivers. Is that a structural problem? Is that an eligibility problem? What information could you share with us on those fundamental cost issues?
Mr Clarke: I so far have not found a more expensive system in the world – and I am sure sooner or later we will discover some jurisdiction where the taxpayer pays more per head for Legal Aid or its equivalent than here but I have not yet. I recently met my New Zealand opposite number and he was talking about cutting back the system they have there, and it is, as you quoted, £8 compared with our £38 or whatever it is per head. We are trying to look at everything. We are looking at scope, we are looking, obviously, at level of fees, we are looking at eligibility, how strictly it is controlled by judging real prospect of success, and all these kinds of things you would expect us to review, but I do think we should look at the underlying structure again. To be fair, one problem may be, compared with Continental jurisdictions, that we do have the adversarial system, so we tend to have two teams of lawyers, where in the inquisitorial system you may not necessarily have that. People would argue that we do have, of course, a split profession, solicitor and barrister. That can drive up our costs. As you explore where the Legal Aid is going, it tells you quite a lot about the underlying structure, how we manage justice. Why do so many cases drift up to get to the Crown Court and then plead at the court door, when everybody has incurred Crown Court costs? Why do cases get charged at the level they do, so everybody pays on the basis that that is the case and then you get to court and it is no longer pursued, and just the sheer process of how many hearings you have in some forms of litigation? That is quite apart from whether we are providing too many lawyers for the wrong sort of cases, and why do the cases take so long? Everything in the law now takes far longer than it used to a few decades ago. Are there perverse incentives in the system which mean it pays you to ensure that the case goes on for rather longer than might strictly be necessary? Whilst we are sticking to those things really that are mainly measurable, bankable things we can offer to the Treasury, there is quite a lot just by tightening up the system and making sure it really operates sensibly that can save a lot of Legal Aid costs if we have a look at that. So we are looking at those structural problems.
Q9 Claire Perry: Is your review considering what I think the NAO and the Public Accounts Committee have both identified as financial inaccuracies, if you like, with the Legal Services Commission? It seems to be one of the more criticised quangos. Do you have plans perhaps to take the accountability for that organisation back in-house as part of the NDPB review?
Mr Clarke: The previous Government had announced the intention of making the Legal Services Commission an agency of the Department and I think we are likely to follow that path. We have not decided exactly how. Obviously, there is a period of uncertainty with the staff. We have reaffirmed that we are minded to do what our predecessors were intending to do, so we have to bring that to a conclusion as soon as possible, and we are looking at the financial controls of the Commission itself. Their accounts have been qualified by the auditors at some time in the past; I do not think they are likely to be now. We are looking, for example, at the recovery of over-payments of Legal Aid where the performance the Commission and ourselves think might be improved.
Q10 Chair: Have you looked at the question of having enough people in the profession doing Legal Aid to provide a service and indeed the possibility of competitive tendering? Is there a danger that we may, while you are considering all these things, get to the point where there actually are not enough people doing Legal Aid work even to provide solicitors for both parties in some areas, or competitive tendering if that is what you move to?
Mr Clarke: I think the country has enough lawyers. We have an enormous legal profession compared to what we used to have, and there is no lack of people wanting to come into the legal profession either. I accept that we have to keep an eye on the fact that we do not want to have a sharp reduction in the number of lawyers who will do publicly financed cases so there is a shortage of provision but there is no evidence that that is happening at the moment, as far as I can see, and I will look at any suggestion that we are thinning out the availability of legally-aided cases where it is a class of case that we finance. Competitive tendering is steadily coming along. Indeed, there is a whole raft of contracts out for competitive tender that were put out before we took office which we plainly have not stopped, we could not stop, and even as I speak probably, contracts are being placed, and there will be some churn in parts of the country. Some practitioners may lose contracts they have previously had, new entrants will come in, but our underlying feeling is that is quite a good thing. Of course, you have to keep an eye on what effect it might have on the future shape of the profession.
Q11 Mrs James: We have already heard about the costs in other countries and taking a very different approach to the costs, but other countries have also taken a very different approach to raising money for Legal Aid and I am just wondering about the levies that France have looked at. They have raised €300 million by putting a levy on the costs that solicitors and lawyers get from crimes and a £200 levy for every legally-aided person found guilty. Will you possibly be looking at these?
Mr Clarke: We are reviewing the whole field. I am aware of each of the things you have cited. We are looking at how the French, for example, manage to provide what seems to be regarded by them as a perfectly satisfactory system at a much lower cost than ours. I know Jonathan Djanogly is following up in some detail some of the examples you cite. You mentioned another possibility, which is getting someone who has been convicted to make a further contribution to the costs. We are having a look at other practice. We are considering a whole wide range of things to see what is feasible.
Chair: We are going to turn to magistrates’ courts.
Q12 Mr Llwyd: My first question, Lord Chancellor, is: is it possible to extend the consultation period for this exercise? You will know, as a very experienced Member of this House, that no serious consultation takes place in August.
Mr Clarke: I too always take a Continental August, I have to say, and I of course heard Mr Llwyd raise this in the House of Commons at Question Time yesterday. So far it is the only representation I have had. What I can say is that we are carrying out a serious process of consultation. Jonathan Djanogly is heavily engaged in doing so. We are quite prepared to examine the case – and they vary quite a lot – of the different courts that have been talked to but I am not at the moment persuaded that there is any widespread feeling that we have not allowed adequate time for representations. I am not quite sure what further information you, as the Member for Meirionnydd, are intending to compile that would take you beyond September.
Q13 Mr Llwyd: Let me put it to you.
Mr Clarke: I know you have strong views on where we are but what are you waiting to acquire?
Q14 Mr Llwyd: I will ask you a question, Lord Chancellor: has the rural proofing been done?
Mr Clarke: Rural proofing, as you put it – we are conscious of the fact that there is a perfectly valid argument to be had about accessibility to justice where the population is particularly scattered, and I realise your own constituency has its very marked geography and density of population. That is a perfectly valid consideration. I do not think we are proposing to put some absolutely automatic rule. We have given an indication of the sort of distances and times we think might be feasible for people but we are open to argument. Do people think that the problems in proposed parts of the country where rural sparsity means that people would have unreasonable demands put on them. I will have a look at those arguments that come forward in the consultation.
Q15 Mr Llwyd: Likewise, the equality impact assessments have not seen the light of day, have they, or the criteria for those?
Mr Clarke: I have not seen them. I do not know whether they have reached my colleague.
Q16 Chair: You had better write to us.
Mr Clarke: I am not sure what equality assessments are.
Q17 Mr Llwyd: How they impact on various user groups.
Mr Clarke: I am being advised that we have published our initial screening.
Mr Llwyd: The initial screening is only one step, is it not?
Q18 Chair: I think you are going to have to send us that in writing.
Mr Clarke: Either I or Jonathan Djanogly will have to send it. I am sure Jonathan thinks of nothing else as he is going through the whole process. I will scrutinise it. Now I know they exist, I will look at them myself.
Q19 Mr Llwyd: My final question is this. You have said on more than one occasion that you do not want a justice policy determined solely by cuts. What is the non-cuts justification for closing 40% of all magistrates’ courts?
Mr Clarke: I just think the delivery of justice needs to be in keeping with demand and also with modern processes of justice. The reason we put out all these for consultation is that the estate is seriously under-used and it is inefficient to have a scattered estate of varied buildings of varying ages – some, I admit, quite modern, but some quite elderly – they cost a great deal to maintain, and some are very little used. These are not ones that are used five days a week, and there is quite a substantial arrears of maintenance costs piled up upon them, and we think we can change the capacity, the utilisation, of our courts to a more reasonable level and therefore save unnecessary expenditure. We also think modern technology and different approaches to how you might resolve disputes also can follow on in the wake of having a look at our court estate and the way in which we use it. So modernising courts, deciding how we address dispute resolution of all kinds, and what kind of access to justice future populations will require follows in the wake of this first step of saying we just have a lot of redundant buildings which we are not making adequate use of.
Q20 Chair: But in some areas magistrates’ courts – and this is true in Northumberland, in Alnwick, for example, in my constituency – are on the upper floor of the police station and it is very difficult to see that they could be used for any other purpose. They are usually shared with the county court sittings as well. As long as the administration and the magistrates themselves are in a position to travel from place to place, if no gain is going to be made from releasing an asset, what is to stop sittings still being held in other centres?
Mr Clarke: We used to have a lot of courts like that, most of which have vanished. I remember I used to appear in a marvellous one somewhere in the Black Country where an old stove was put in the middle of the floor and rather ineffectively tried to heat it. I am sure the police put that to much better use many years ago. What we are hoping to do – this is broad average, not Alnwick – is improve the utilisation rates from 64% to at least 80% and in the county courts we want to increase average sitting days each year from 130 to 200. I am told there are 33 magistrates’ courts which sit for less than a third of their total available time. The ones above the police station, yours and maybe others, plainly we cannot raise money by selling. It is not ours; it will belong to the Police Authority, but I suspect the Police Authority, if we do not require it for the dispensation of justice, will actually make some perfectly worthwhile use of it.
Q21 Anna Soubry: I do not have any magistrates’ courts in my constituency so I have no interest in that respect but there are some in the county, the county of course, Lord Chancellor, that we share, that will close. I would ask when you are considering the real costs, the savings to be made by closing down courts that clearly, if I may say, are not fit for purpose, will you make sure that the costings reflect what I call the true costs of, for example, the travel for police officers to attend those courts? There are a number of instances when police officers will be on duty. If you think of a town like Worksop, they will be on duty in Worksop Police Station, they know they might be called into court, it is literally a few steps away to the magistrates’ court, so there is an additional cost not just of travel but any imposition on their duties and their working hours. There are, obviously, the costs of the CPS who will have to travel away, and therefore to call solicitors, defendants, prosecution witnesses and of course defence witnesses. I hope those additional costs will be looked at when looking at the savings that may or may not be made.
Mr Clarke: We are going to look at them all individually but, as it happens, the only magistrates’ court that was ever within my constituency was closed a few years ago without the slightest fuss from anybody in a market town. All of them need to be looked at carefully, and I do agree with you that we should be looking at this from the public’s point of view, so considering the costs incurred by everybody else. It is a perfectly relevant consideration. I would go on to say that the points you raise, very validly, are also relevant to what I was saying about the use of new technology and exactly how we do minimise attendance at court when it is not necessary. Quite often people find themselves called to court for rather routine purposes or for things that are predictably adjourned. You can use video conferencing with the prison, for example. We are experimenting with virtual courts, indeed, where things can be done from police stations. It is, with respect to the courts system, a very old-fashioned way of looking at the thing that everything, all the business that used to be transacted by the local police court and by the local county court, needs actually to be transacted in the building, with so much attendance of so many people. They have been closing them steadily for years. I think, subject to what anybody produces in the consultation, some of the ones we are consulting on should have been closed years ago, and it is difficult to see why they were not, but what it will also provoke is looking at whether, in this day and age, we can actually make the whole system work more conveniently, because the time of the police, the time of the witnesses, everybody, is extremely important.
Q22 Claire Perry: May I just also enter a plea, like my colleague, representing a large, rural and sparsely populated constituency, when you are thinking about the travel times, you actually go through the process of working out the actual travel time, not what it says in terms of the crow flies, which is a trick that the PCT has used to shut down all of our minor injuries services. Please look at it from the people’s perspective, not just what the map says.
Mr Clarke: We will, and I commend that to Jonathan Djanogly. This is all familiar from health and post offices and all these things, but they are important points, as you say, because all of us sometimes challenge the description. The longest journey we have found so far is a 40-mile one between Ludlow and Telford, I am told. No decision has been taken. A great deal of fuss is being made, I know, about the court in Salford but that is 1,050 yards away from the Manchester court.
Q23 Mr Llwyd: Lord Chancellor, I do not want to hog this but you said 40 miles; I represent a constituency which is 100 miles north-south and 90 miles across. Under these proposals there will be one magistrates’ court.
Mr Clarke: I hope it is in the middle.
Q24 Mr Llwyd: It is in the middle.
Mr Clarke: I assure you I am not being frivolous. There obviously is feeling in Meirionnydd, so we will carefully examine perfectly valid arguments like the amount of rural travelling and the amount of time it actually takes to attend. Fortunately, it is not like a post office or even a health facility. I would argue that most ordinary members of the public will only attend a court of any kind on two or three occasions in their lives. We are not talking about a neighbourhood shop here. Some of the courts we want to close are totally old-fashioned in their facilities: they have no disabled access, prosecution witnesses, defence witnesses, everybody all muddled in a not very adequate waiting area, things we would have got rid of a long time ago if we could have.
Q25 Mr Buckland: Moving on to the topic of sentencing, Lord Chancellor, in your keynote speech of 30 June, amongst other things, you said this: "In my opinion, the current legal framework is over-complicated, confusing and somewhat disingenuous." When it comes to judicial discretion, would you say that sentences are caught between the rock of over-complicated legislation and the hard place of sentencing guidelines and, if so, what are you going to do about it?
Mr Clarke: Yes, I am glad you caught up with the speech I made at the Judges’ Dinner, and actually, because they were there with me and it was the Judges’ Dinner, I did quote with approval really rather passionate complaints that had been made in the recent past by the President of the Supreme Court and by the Lord Chief Justice about the incomprehensibility of some of the sentencing legislation that they were having to implement. We have had so much legislation in the last ten years or so that it has run ahead of common sense sometimes and is quite difficult to interpret. That is one of the things we have to address when we address the whole sentencing structure. I have forgotten your last point, which was a specific one at the end.
Q26 Mr Buckland: What I was specifically asking about was first of all the legislation but also the sentencing guidelines, and in particular the role of the Sentencing Guidelines Council.
Mr Clarke: Yes, we now have a new Sentencing Council, which is just starting work and is eager to get on. At this stage I am just getting up to speed with their agenda and how they propose to tackle it. I have said more than once, I think including at the Judges’ Dinner, that I think I am more inclined to allow for judicial discretion than some of my predecessors were, because the plain fact is that there can be the most enormous variations in the actual culpability, the severity, the circumstances case to case, there are big variations in the circumstances of offenders, and the key matter which any judge or magistrate has to bring to a case in the end is judgment, not just following guidelines and ticking boxes and seeing whether you are in the right range, but actually deciding what justice demands in this particular case, and I have quite a bit of confidence in them.
Q27 Mr Buckland: Are you aware that, although they are described as guidelines, very often they become tramlines and cause a particular problem for discretion in a particular case? Is the answer perhaps abolition of the Council?
Mr Clarke: I have not reached that stage yet but there are some members of the judiciary who think it has all been taken far too far. The guidelines we have are not actually that rigid. It is open to anybody to decide that, in the interests of justice, the statute allows them to ignore the guidelines. There is a certain amount of discretion put in there but some judges are more inclined than others to feel they are constrained strictly by the guidelines, and magistrates sometimes are most reluctant to step outside the guidelines. I think we would like the men and women who are magistrates to bring their common sense and judgment into the courthouse and not just the ability to follow the guidelines. I think you can exaggerate. There is reasonable discretion and of course, the new Sentencing Council will keep readdressing the guidelines so we will see what kind of thing they come forward with.
Q28 Mr Buckland: Lord Chancellor, may I just ask you about a case that you referred to in your speech to the Judges, the Drake Hall Prison case, which was I think the source of the annoyance of senior judges, including the person in the Supreme Court who described the road to hell as being paved with good intentions, and the context of that case was Custody Plus – you may remember that, Lord Chancellor – which was brought in by the previous Government, full of good intentions, but in fact there was no delivery or resource mechanism put in place in order to implement it. Just bringing things up to date now, we have all read and listened with interest to your points about community sentencing. What steps will you take to ensure that we do not end up in the same position with regard to the gap between legislative intention and delivery when it comes to effective community sentencing?
Mr Clarke: That is a very wise point, if I may say so, which we certainly ought to bear in mind. We are not the first government that has tried to make community sentencing more effective and more attractive to sentencers, and I think we all want to see community sentences which carry more public confidence with them and so on. There are a lot of experiments going on and there are some quite good ones being introduced but there is absolutely no point in running on ahead in legislation or speeches beyond what it is actually practicable to provide on the ground. That is very much a part of the review we are carrying out. What I do not want is for the review simply to result in a whole fresh spate of criminal justice legislation, half of which has not been commenced within a few years. That has been the pattern sometimes in recent years.
Q29 Chair: Do you share the concern that was expressed in the previous Committee’s Justice Reinvestment report, which is that the system, because of where decisions are located, tends to treat prison as a free good, and whoever is sentencing knows that he has to ask whether there is a community sentence or drug treatment or alcohol treatment available locally but if it is a custodial sentence, the van is waiting outside to take the prisoner away.
Mr Clarke: Yes. I think the Sentencing Council is contemplating the possibility of allowing the judges and tribunals to be aware of the cost of sentencing to particular places in the local prison. I think that is a perfectly valid point made by this Committee in its previous report.
Q30 Mrs Riordan: You have talked about prisons becoming more effective, and that is something we would all like to see, and you have mentioned increased use of the voluntary sector in rehabilitation. How do you see the role of the prison officer? What they have told us at this Committee is that the last thing they want to be is turnkeys but they need more time away from form filling and paperwork to spend with the prisoners, because they are with them a lot of the time and know that that contact with the families is crucial.
Mr Clarke: In the very limited contact I have had with prison officers in the first few weeks I have been in office, I have been pleased to meet prison officers expressing this same view. Obviously, all the best prison officers get far more job satisfaction if they think they are doing something which facilitates preparation for release and will contribute to the rehabilitation of some of their inmates upon release. As we are looking at what we can deliver inside the prison as well as what is delivered by the statutory and independent other agencies outside the prison, I think it is quite important to bear that in mind. I think the Prison Service for some years now has been trying to encourage a moving on in attitudes from the situation that used to exist in some prisons where purely locking up and security dominated the culture. It is difficult. The over-crowding in prisons does not help. They are perfectly relevant issues to keep in mind, and it would make it easier to recruit and keep good staff and to give them some decent job satisfaction if we can involve them more.
Q31 Mrs Riordan: Will there be a recruitment drive with the increase in prisoners and if prisons are to be built?
Mr Clarke: We do not yet know what sort of population of prisoners we are going to have. When I made my speech, I rather avoided the speculation about whether this meant I thought we were going to have a lot more prisoners or fewer prisoners. We make estimates of how many prisoners we are going to have. I have made it quite clear that I am not quite sure why we have doubled the number of prisoners and I do not see any immediate point in just driving on to attract more. I do not actually think the Justice Secretary can control the level of crime. For all I know, we might get a sudden rise in demand. We are slightly demand-led and that will determine the staffing of prisons as well.
Q32 Mrs James: You have talked about the costs and you have talked about how costs can be tackled. I have worked in the Prison Service and one of the saddest things you see there is when you meet young men who have been sentenced to three weeks in prison. We know they are off the streets and we know they are being punished for their crime but there is absolutely nothing that you can do for this person in a three-week sentence. They are not going to learn anything, they are not going to pick up any new skills, and when I have visited other prisons, apart from the prison that I have worked in, there has been a cry at every level to give us prisoners for longer so that we can do something with them and we can tackle the problems that they have and address the issues, or can we have meaningful, funded services outside of the prison? I am just wondering how you are going to tackle the costs of the supplementary support that is going to go on outside of prisons. I have seen some interesting work in Canada where, instead of sending a drug addict to prison, they send him to a hospital bed, where you tackle the drug addiction. It is going to take a whole new shift in the public’s perception but how are we going to pay for these things?
Mr Clarke: On the first point, I do tend to agree that we seem to have too many short-term prisoners in prisons. People normally talk about sentences of 12 months or less where frankly there is very little by way of rehabilitative service that can be provided to such prisoners. On the other hand, I think some of the short sentences – I do not think you can sweep away all the short sentences – are necessary for public protection because it is the only thing you can do with some recidivist who is committing the kind of offences which you have to do something about and nothing else appears to work with him. Somebody who is only in for three weeks I find it very surprising ---
Q33 Chair: If he is a recidivist, prison is not working either, is it?
Mr Clarke: Prison does not work either but you have to give the public the satisfaction. They have got to the stage where they know he is inside because the amount of crime has dropped and they know it is going to go up again when he comes back. I do not put that forward with any great pleasure but the more you can find some appropriate alternative the better. I think sometimes with a completely hopeless case you have to have the facility to send somebody down in the hope that at least it will give people a rest from them and sooner or later they will realise they are not going to do any good. The reason for looking at community sentences, the reason for looking at how drug rehabilitation can be tried, even in cases you can say diversion out of court, depending on what he is charged with, but diversion, so that really drug rehabilitation, if it is to have a chance of success, is more suitable than prison for somebody, we are looking very much at that as part of all these rehabilitation policies we are talking about, which are aimed at trying to lower the rate of re-offending, to improve our record on re-offending. I agree with all that and I am very much in sympathy with what you say.
Q34 Mrs Grant: Lord Chancellor, I noted your response to Siân but I would especially like to ask you what your views are on short sentences, especially for women. Do you agree that they can be much less effective for women than for men and, if you do, do you also accept that community sentences may be a much more effective remedy in keeping women out of prison and avoiding them re-offending?
Mr Clarke: Frankly, I do not think I have had time to study enough to come to firm opinions. It sounds as though you might have stronger opinions yourself by having looked at it for longer than I have. I am aware of the fact that I think everybody thinks that we have too many women in prison, that somehow we have acquired a large female prison population and it should not be necessary. Of course, it can have particular problems if they have children and family obligations as well. Attempts have been made to tackle it and have not yet been adequately successful and we must address that. It must be desirable in principle to reduce the number of women we have in prison if we can find that alternatives are more effective in producing a change in behaviour. In a lot of these cases, again, there are serious women criminals who really should go to prison for a very long time. Let us not be too chivalrous about all this; there are some extremely unpleasant women criminals, as there are unpleasant male ones. The problem underlying all this is that we have acquired a kind of growing underclass of people who just go in and out of prison all the time, for not particularly long times sometimes but you just know as they leave the prison they are going to be back again before very long, and particularly the women; they feel all other kinds of consequences that hit the woman while she is in prison – family structure has broken down, she has lost her accommodation and all the rest of it. The same things of course happen to a man but it should be avoidable in all cases, I think.
Q35 Mrs Grant: But it would be nice if those factors could be brought into consideration---
Mr Clarke: I am sure they will. As part of the review we will look specifically at what has been identified I think by most people over the last few years as the problem of the slightly inexplicable number of women we have in prison, where I think most people have an underlying feeling that this cannot be the only way of dealing with that population, apart from the serious criminals. In case the enlightened nature of the discussion alarms people, the underlying starting point is that prison is the best punishment we have for serious criminals, and there are serious female criminals just as there are serious male ones. I will concede there are rather more serious male ones but you have to deal with the female ones severely as well.
Q36 Yasmin Qureshi: Lord Chancellor, I want to consider the question of indeterminate sentences and the whole sentencing for public protection, unlimited sentences, especially the way they have been applied in the last number of years. It does suggest that people are getting inordinately long sentences or a lot more people are falling into the criteria of indeterminate sentences when perhaps that may not necessarily reflect the criminality of what they actually did. I just wonder if the Department is looking at that.
Mr Clarke: We are looking at indeterminate sentences, as we are looking at overall aspects of sentencing as part of our review. It is a comparatively new feature of the makeup of the population which I think it is right to have a look at again. I think we have far more people in prison serving indeterminate sentences than anybody ever contemplated when Parliament first passed the legislation, something over 6,000 at the moment; about 2,000 have served more than the tariff, and they of course cannot be released without the Parole Board having carefully assessed the risk in each case by the standards laid down by the statute, but the Parole Board releases very few prisoners. It is reluctant to take the risk, so if you look at the prison population, we have an ever-growing collection of people inhabiting the prisons on indeterminate sentences. Anne Owers, in her recent report on the state of the prisons, was a little concerned about the rising number of people, quite high-risk some of them, who are probably beginning to get the feeling that they are unlikely to have any prospect of release at any predictable time in the near future. This is not an easy area because it does include some very high-risk people indeed but I think we are entitled to have a look at how it has worked out. The previous Government has already tried to cut down the numbers and correct it once but we are now, as part of the review, obviously looking at indeterminate sentences.
Q37 Yasmin Qureshi: I do not think anyone suggests that in principle, I suppose, there is nothing wrong with an indeterminate sentence for people who are very high risk but maybe what needs to be looked at are the criteria used by judges to make that determination that this person falls within them. That is something that perhaps needs to be much more tightly regulated as to the circumstances in which it can be given and the type of incidents or the type of criminality that we are talking about.
Mr Clarke: I am interested by your views on that aspect of it. As I say, I think it is beyond argument – I have not yet looked up the debates when they were first introduced but I do not think Ministers or anybody else contemplated that so many people would receive indeterminate sentences.
Q38 Chair: Or that we would have to greatly enlarge the Parole Board at the time.
Mr Clarke: We have just gone in for another monster increase in the Parole Board, the number of judges available, the psychiatrists, everything else, in order to try and catch up with the huge arrears in its work. Almost half the Parole Board’s work now is with indeterminate sentences. It is very important, of course. We do not want arrears in the Parole Board but I find it rather odd that it is becoming a court system. We have judges involved now, we have lawyers on both sides making representations, so we have a highly expensive court system which determines whether people should be sent to prison, and we are growing at an enormous rate. We have another court system deciding whether they should be let out, all on Legal Aid usually, and so I think it is time to review all this because I think we have got to a situation which nobody ever predicted or intended.
Q39 Karl Turner: Just going back to short sentences, if I may, Lord Chancellor, I think your policy is to move away from short sentences into community-based penalties, and that is the agenda.
Mr Clarke: Where there are adequate alternative community sentences, fewer short sentences but not the abolition of short sentences because, as I said, I think there are going to be a perfectly reasonable number of cases where a short sentence needs to be available to courts.
Q40 Karl Turner: I do wonder though whether there is a hidden agenda behind that policy and whether it is more about refusing Legal Aid grants to solicitors, because the defendant who is not likely to go to prison does not need a solicitor with the interests of justice test.
Mr Clarke: No, I have been trying to think of many ways of controlling the Legal Aid bill, as I think the previous Government did, but that did not lead us to our views on short sentencing and community sentence alternatives. No, no, the overwhelming interest of most people who debate the relevance of short sentences is what is the most effective way of dealing with people, and it is when you look at the shorter sentences that you get the highest rates of re-offending. I think with 12 months and less the rate of re-offending is 60% of those who are released. It is a counsel of despair if you say you are not going to tackle that and just accept that the majority of them are going to be back again before long, and that is what has led us to look at short sentences, because some community sentences, we hope, can establish a record of being much more effective in stopping re-offending. These people are not robbing banks; they are committing the kind of crimes repetitively that get them 12 months or less. The principal public objective would be can someone not find a way of getting this person settled in a flat, with a job, and keeping themselves out of trouble, dealing with their drink problem, dealing with their drug problem, and getting them to lead a less wayward way of life?
Q41 Chair: I would draw your attention to what this Committee said in its previous report, which is that sending someone for a short prison sentence for failure to comply with a community sentence is not likely to be effective when what you actually needed to do was to send somebody in a uniform round to the house to make sure the person got out, went to his community sentence, did what he was required to do, made the reparation to society that he is expected to do, and enforcing that more powerfully and effectively could achieve a great deal more at less cost than giving bed and breakfast and three meals a day in a prison.
Mr Clarke: Yes, that sounds persuasive. Opinion goes backwards and forwards. People discover that nothing is being done when people do not comply with their probation order, so suddenly a great public demand goes up that everybody should be put back in prison as soon as they cease compliance, and then suddenly you discover that people are being put back in prison at public expense when actually somebody could have sorted out, in the way you describe, the fact that they were failing to report or were not keeping a curfew or whatever it is.
Q42 Karl Turner: I agree with much of what you have said, Lord Chancellor but in my experience, it is true that defendants have to do pretty bad things actually to get 12 months or just less than 12 months. The other point I wish to make is, also in my experience, the Probation Service literally bend over backwards before they "breach" a defendant for not complying with the order. Is this the way you really ought to be going? The public, in my view, demand that people who commit crime go to prison and whilst they are in prison they are not committing crime. That is the truth of it, is it not?
Mr Clarke: That is the argument for prison, I agree, per se, which no-one challenges. Prison is there for serious criminals. I am just saying that some people need 12 months in prison; the offences involved are quite serious enough to justify sending them to prison, and part of the purpose of prison is to give people a rest from their criminal activities for as long as they are inside. What I am actually saying is that is not enough and I think that on top of that, where it is feasible, you should do what you can to try to add some rehabilitative element which means that more than presently do stop offending and do not come back again after a particularly effective sentence. I just think that is all perfectly reasonable, and it is a slightly false argument, which I think has affected political debate in the last few years. I do not know a politician who does not think you should send serious criminals to prison, and I do not know a politician who does not think that imprisonment is a valuable protection for the law-abiding public. What we do not want is a competition in who can say it most vehemently and pass more and more legislation more quickly than their predecessors and try to demonstrate there are more in now then there were under the former Government, which is I think where we were under one or two recent Home Secretaries. I will acquit some of my opponents but one or two got very much into that area.
Q43 Karl Turner: Lord Chancellor, what you say is very impressive but I do not know whether you have considered the costs of rehabilitation. How expensive is it to rehabilitate say, for example, a drug user and indeed a regular offender as opposed to sending that person to prison? I know it is expensive to send an offender to custody but if we are going down the road of rehabilitation, proper rehabilitation, how costly is that going to be on the public purse when we are in an age of austerity?
Mr Clarke: That is quite right. It is no good just paying for more and more experiments in drug rehabilitation. We spend money now on drug rehabilitation or drug maintenance programmes in prison, and we obviously now have drug rehabilitation programmes in the wider world but I agree; there is no point just thinking we are going to pour a lot of money into all this, which is why we are in the course of looking at what we can do in rehabilitation looking for different approaches, like payment by results to a wider range of agencies and providers than perhaps we have employed in the past, because the cost-effectiveness of what you do has to be very important at the moment and actually getting the results is what matters. The world is full of enthusiasts who think they know that they have some great new programme that will suddenly transform the criminal behaviour of a particular section of the population, and I am afraid a lot of them fail, and paying by results produces the best benefit to the public.
Anna Soubry: I think we have just proved to everybody that sentencing is something that everybody has a view on and it is fiendishly complicated, and it is critical that it is not approached in that broad-brush way because it is so intricate. I share so much of what Karl says, obviously based on experience, but it is just this: when you are going through this process of looking at how better, frankly, to stop people from re-offending, because that is really what a lot of this is about, how we stop them going through the courtroom door and all the rest of it. You said that you had no doubt that when Ministers looked at what I will call the IPP legislation, they had no idea how that would clog up the prisons. I have to say that was not the view of the bar, solicitors and judges; they had no doubt at all what the consequences would be. When you go through this process of looking at how we sentence people better, please will you ensure that you do not just talk – and forgive me, everybody who is here – to the professional bodies but the real sharp end: prison officers, probation officers, solicitors, barristers, judges, doing it day in and day out, because it is fiendishly complicated. Very quickly, can I just say that the argument around the short sentence is a very good example: how often there is a lack of knowledge. I think we who have all been there in the criminal justice system know that sometimes you reach a point with somebody where there is no alternative because, with great respect to the Probation Service, they do not want them---
Q44 Chair: Can you ask the Lord Chancellor a question?
Mr Clarke: I will follow the advice on consulting much more widely than just the professional bodies, although I have the highest possible regard for the professional bodies, but I think it is true in most areas of policy that just dealing all the time with the representative bodies is not the best way of proceeding, but we will add to that real practitioners. In fact, on community sentencing, in one of my speeches I invited judges, magistrates, anybody who had their own judgment based on their own experience, what community sentences were most effective and what were not and if not, why not. We are looking at canvassing views, and on short sentences I agree with you; I was saying the same thing a moment ago. I just think you cannot get rid of all short sentences because there are people for whom there is absolutely no alternative and for whom the sentence is thoroughly merited.
Chair: We had a very productive e-consultation with prison officers which bore fruit in our report on the role of the prison officers, and we have in mind to do the same thing in the forthcoming work we are going to do about the Probation Service, which will give an opportunity to probation officers at the sharp end to tell us what they think.
Q45 Jessica Lee: Lord Chancellor, I wanted to ask you about sentences in the community and how to make them more effective. Is there an argument that the voluntary sector, in its broadest sense, could perhaps step in at this point and be encouraged more to assist the Probation Service and others in implementing those community sentences so they are more effective? I have in mind drug and alcohol misuse programmes, and perhaps the voluntary sector being brought in to work more hand in hand. What is your view about that?
Mr Clarke: I find that an extremely attractive idea. There are voluntary bodies that do get involved in work with offenders now but I think there is a huge prospect of encouraging more and involving people more directly in what we do. One of the things we are looking at, as I mentioned in Question Time yesterday, is this experiment about to start in Peterborough which was actually launched by the previous Government, where the St Giles Trust are involved in that as one of the participants. As we try to develop the whole idea of payment by results, what we are contemplating is that charities, voluntary groups, not-for-profit organisations, as well as the statutory probation trusts and so on, are people we are looking at as providers. On the other things you mentioned, we keep mentioning these other areas. We are in the Government trying to look across between Departments because the Government obviously has to have a policy on drugs and drug rehabilitation. The Government is producing an employment programme; we have to have a policy on employment and skills training. All of this has a bearing on the prison population, as do health services in general, mental health services, and making sure that we tie in with what is being done by the relevant Department in that field is very important. My colleague John Hayes I think has this morning announced that he is carrying out a review of education for offenders, which is actually being carried out by his Department, by BIS, but John and I will work together because obviously it is important that we both know what we are doing to address the very important need to improve the education facilities available, because a huge proportion of our prisoners are not properly numerate or literate.
Q46 Chair: Can you really expect the voluntary sector to cope with payment by results, bearing in mind the cash flow problems which voluntary organisations face?
Mr Clarke: That is why I was quite interested in the Social Bond that has been used to raise some capital for them. There is a private sector provider there as well. It is a real problem. Some voluntary bodies, trusts and so on could be very good but they have to raise some capital. If you go to payment by results, you have got to put capital up front. We hope to find some variance on the Social Bond model that might be of help.
Q47 Claire Perry: We have talked a lot, Lord Chancellor, about the offender issue. May we just spend a minute on victims and what you are proposing to do to perhaps strengthen victims’ rights, or indeed the involvement of victims potentially in the sentencing, the restorative justice agenda?
Mr Clarke: Victims are able to make a statement now about sentencing in serious cases. The first thing they have to do is assess how that is working and whether it is satisfactory. I think victim support is exceedingly important. It is taken far more seriously now than it was, by which I mean support to those victims who are actually most adversely affected. If someone has picked my pocket, I would be extremely annoyed and very much hope that the police catch him and that I get my wallet back. I do not really need counselling. You have to be selective. Other victims are deeply shocked and their life is seriously scarred and they do need someone to help them cope with the very shocking consequences of a serious or violent incident they have been involved in. There are some very important bodies that provide that, but we are looking at victims and what we do for victims. The reason I mention in my rather flippant and slightly exaggerated examples of the extremes---
Q48 Chair: How uncharacteristic of you!
Mr Clarke: Very uncharacteristic. What I am slightly wary of is too much formalisation of the whole thing. Sensitive support to victims that need it is the thing we should maximise.
Q49 Claire Perry: I am not sure of the procedure but indeed there is the Bobby Van Trust in my constituency that visits older people who have been victims of, in particular, break-ins, which are deeply distressing. They do amazing work in helping them secure their home. It is, again, a charity and we want to out-source these things to charities but it is incredibly effective and is working really well on the particular problem.
Mr Clarke: You also mentioned restorative justice. We are certainly looking at that. Again, some of it involves meetings between the offender and the victim. Again, my sense is that has to be done sensibly. There are quite a lot of victims who have not the slightest interest in seeing the offender and do not want to be bothered by any of this. Indeed, there are some more vulnerable victims who would be quite frightened at the whole idea of being involved. So we do not want the enthusiasts to overdo it. Many people whose views I respect are convinced that the development of restorative justice is going well and there are plenty of cases where we need more of it, it needs to be developed, and that is part of our review of sentencing and rehabilitation at the moment.
Q50 Mrs Grant: Lord Chancellor, just to go back to payment by results again, when do you actually expect it to be operational? I still have concerns about how you are going to measure these results. It sounds good and sensible but will the measurement work? Who will do the measuring and who will benefit from the information that comes from those measurements?
Mr Clarke: I cannot answer that question. I am hoping we are going to have a sufficiently worked up policy by the autumn to put out a Green Paper. That is where we are. We are devoting quite a lot of effort within the Government to trying to produce something that we have some confidence can be made to work. I would not like to start trailing my coat as to how soon we think we are going to have anything in practice but obviously the sooner we can do it, the better.
Q51 Claire Perry: What about measurement? Are you confident that you are going to be able to measure all of this?
Mr Clarke: I think if you pay by results you have to have some simple, comprehensible measurement of success. The more you try and complicate it, the more it ends by having arguments about what is actually cause and effect. You have to put up with the fact that if you pay people because someone does not re-offend, in some cases they will be just lucky because nothing they do has contributed but the man will not offend again. That does not matter, so long as you set the overall level right, because they will make the contract finance their activities as they wish if they can really get above the average level at which we have pitched the pricing, and if they can improve on that, you pay them by what they deliver.
Q52 Claire Perry: Who will benefit from the information that is measured, that you glean?
Mr Clarke: We produce statistics now about re-offending which are reliable. If people start making claims and we contract for it, one minor side effect might be that we get improved information about what actually is happening in terms of re-offending and different types of treatment.
Q53 Mr Llwyd: Human nature being what it is, is it likely that some providers will avoid the more difficult customers, if I can put it that way?
Mr Clarke: So long as you do not price your contract so they can just make a very good income doing that, my own view – and this is very tentative, the sort of thing we have not settled yet – is that you just put up with that. We go for payment by results in the work programme and if I were a provider in the work programme, I would probably begin by having a look for the young PhD holder who seems to have a large number of skills, who has got himself unemployed, and seems to have got on to your programme, so you can get him into work. Give him help to set up his business and he will have a major chain going in a few years’ time, and that is easy fees. You have to price it so that you just put up with that, and that makes sure that people are not totally wasting their time with very hard cases. You just have to price at the right level. So all right, they have a few easy ones but they do not really get anything out of the contract unless they can show a demonstrable improvement on what you would expect to happen if they were not providing the programme.
Q54 Chair: Lord Chancellor, are you really going to build any of the 1,500-place prisons that were projected by the previous administration?
Mr Clarke: We do not know until we finish the sentencing review and the Spending Round whether we are going to open them. We actually have placed a contract for a 900-place prison at Belmarsh. I am going to take a cautious, prudent view of the prison population. It is no good just tuning in and assuming that we are going to produce a miraculous improvement in the growth or fall of the population, and then find we have run out of places. So I am cautious about just scrapping the prison programme. There is also a case, if it could be afforded, for new prison building to replace old prisons, both in terms of being able to do so much better by way of the facilities you are able to give and what the prison officers can do, and actually the costs of running a properly designed, modern prison per prisoner are spectacularly better than some of the old ones that we have, but that is all to be decided in the Spending Round.
Q55 Chair: But the contracting process is suspended for the moment, apart from Belmarsh?
Mr Clarke: We placed that contract a fortnight ago. We do not have one imminent. I do not think we are on the point of placing a contract in the summer. There are others which are rolling forward. There is one where we are trying to sort out planning problems. It is when the Spending Round has been completed that I shall be able to give you a more precise answer as to what is going to be left of the prison building programme our predecessors planned.
Q56 Chair: If you have some money that you can use to replace an obsolete prison, would presumably you would want to build the most effective kind of prison; would you then choose to build a 1,500-place prison?
Mr Clarke: I have not formed a clear view. I remember all this argument about – were they called Titan prisons?
Q57 Chair: They were even bigger. Maxi-prisons.
Mr Clarke: I remember when I was not shadowing this Department being rather alarmed by the idea of building such giant prisons, which poses all sorts of problems. We will make a judgment in the individual case. There are undoubtedly economic benefits in having large prisons. It is inescapable; it is rather like large hospitals. But you do have to make a judgment about how far that helps you and, on the other hand, what the risks are in managing such a prison when you go forward.
Q58 Chair: Or the cost of failure if they are not efficient.
Mr Clarke: It seems to be the judgment of those advising me that 1,500 is about the cost-effective balance between the two. Some are in the pipeline which we will discover may or may not emerge at about the 1,500 level. The one I could not remember the name of.
Q59 Chair: A previous report of the Committee would question whether you can measure the cost-effectiveness purely on the basis of a sufficient rate of housing of prisoners rather than the cost of the crimes they might subsequently commit.
Mr Clarke: Effectively, it includes what kind of regime we are going to be able to maintain in such a giant prison, I agree. Yes, Runwell Prison is the one where we have run into planning problems but that is being continued at the moment. That is a 1,500-place prison. At the moment the Ministry of Justice best judgment of the right compromise between efficiency and manageable size is 1,500. As part of the review, we will reflect on that when we see whether we have a prison building programme and how big it is.
Chair: There is one more area we want to cover, which I think we can get in before the Division. Luckily, we have not had one during the main part of our time but there might be one fairly soon. I will ask Jessica Lee to open that one.
Q60 Jessica Lee: Yes, it is about reviews, Lord Chancellor. There are of course a wide range in topics in the number of reviews which are forthcoming in your Department, everything from libel, judicial appointments, the law around self-defence and so on. I was wondering what the thought process behind launching a number of different reviews was at this stage.
Mr Clarke: It is a habit of governments coming into power. I remember pulling the leg of members of the previous Government about the number of reviews they got going within the first six months when they came to office. As I have said, it just is the fashionable word. I tend to slightly object to announcing reviews of things and then I find I seem to have announced one because it is what everyone describes it as. I see it as the process between the policy preparation you have done in opposition, as modified in this case by a Coalition Agreement, so you have a kind of pooling of policies in some areas, and then, with the best will in the world, however much support you have had outside and however much work you have done in drawing up your policy document, you then get into the Department and you have to use the expertise of the system, and argue with the Treasury, to turn it into a practical policy that is going to be put into effect, and that tends to be called nowadays a review, and it is being done at a pretty brisk rate. In some areas you find that your ideas are fine and the Department has worked them up already, and you can get going, and in other areas you find that you just were not quite aware of the fact that the people who are going to have to deliver it are a bit concerned about what you think you are doing, and they are trying to persuade you to modify it. The other thing is, of course, you have a lot of policies that have been designed at a time of economic boom by a team of shadow ministers who had not quite predicted that when the time came to get in, we were going to be short of money. It varies from patch to patch across the Government but I think at the moment we are being more criticised for getting on at such a cracking rate with remarkably radical policies in some areas which are ready to go. The Conservative bit of our policy was the rehabilitation revolution, and we are sticking to that and we are moving on to turn it, I hope, into practical policy proposals by the autumn. As for all these other reviews, defamation, people of all parties have been demanding a review of the defamation law anyway, but that is a more traditional consultation which will be based on a draft Bill, planning changes to an area of the law where, although there is a wide range of opinions, I think there is scarcely anybody in Parliament who does not think the defamation law needs readdressing.
Q61 Jessica Lee: Following on from that, Lord Chancellor, and you have perhaps mentioned this point already yourself, some may say that perhaps there is a danger in commissioning reviews or reports straight away, perhaps at a speed, whilst of course you are having to ensure that the evidence base for those reviews is a sound one. I wondered how the Department were going to try and ensure that that was happening.
Mr Clarke: I quite agree with you. The answer is not to feel so absolutely desperately anxious to make an instant mark that you go galloping on at too fast a speed. I am very conscious of that but I think, on the other hand, the kind of things we have been talking about, it is reasonable to have a look at producing sufficient policy proposals to start consulting and preparing for implementation by the autumn, and actually, by the time we come out of the Spending Round, you will need to be ready to start delivering some of this by the autumn. I have not made that many policy pronouncements. I do not feel the need to make them overnight.
Q62 Anna Soubry: Lord Chancellor, there is a review of the law of self-defence. There were reviews in ’07 and ’09 and no proposals were produced. Is that because in fact the law of self-defence is perfectly adequate? I ask because I wonder how much it is going to cost to review what some would say is actually a perfectly good piece of law as it exists at the moment.
Mr Clarke: There is a wide range of opinions in the legal profession and in politics on this. I take note of your views. I have taken part in this debate myself in the past. We are having a look at the law of self-defence because there is some strong feeling on it but we will have to decide whether there is a case for changing the law or whether some of this is just a reaction to understandable concern about individual cases, which does not always lead to better law if you react too forcefully to it.
Q63 Chair: Are you collecting these well known and widely canvassed opinions or are you paying people a lot of money in order to give you formal opinions on this?
Mr Clarke: Only civil servants. We are consulting on most of the things I have talked about. That is why I am saying I am anxious when I announce a review that I do not mean that a body of the great and the good is going to be assembled, provided with a secretariat, to go away and study it and produce a great published report. Most of my reviews are what I regard as the ordinary process of government policy formulation whereby Ministers and officials sit down, consult everybody with an informed interest to make sure they are taking in outside expertise, and then produce a policy for the consideration of Parliament and others in due course, or a Green Paper or whatever. The slight exception is the review of family law but it was our predecessors who set that up. David Norgrove is chairing it. It strikes me as very sensible, and I have met him and it is going ahead, and that is a slightly more formal review. That is a body of the great and the good who are going to review family law, which is I think quite important.
Q64 Yasmin Qureshi: Whilst it is acceptable that obviously from time to time the Departments need to carry out reviews, and I welcome the review on family justice because I think there are things that need to be looked at in that, I do wonder however whether there is really a need to review the Bill of Rights argument and I would touch on self-defence as well, because we have perfectly good laws that already exist in terms of Bill of Rights. We have the Human Rights Act, which is compatible with the European Convention on Human Rights, and the European Convention is compatible with the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, so what is the useful purpose of reviewing this particular piece of legislation? Is this not pandering to the Daily Mail and the Daily Express and The Sun newspapers’ obsession with these things?
Mr Clarke: I seem to recall that our commitment is to set up a Commission to examine the case for a Bill of Rights. I do not seem to have the right page of the Coalition programme. It is narrowly defined. We commit ourselves to making an announcement about the Commission probably some time in 2011. Similarly, I think we have committed ourselves to looking at the law on self-defence but we have not set a time on it. What we have made quite clear about the Bill of Rights is that we are not going to move out of our obligations under the European Convention on Human Rights.
Q65 Chair: I hardly need to ask the question but might that not have been a hard-won compromise when two parties were trying to reconcile different views?
Mr Clarke: It was one of those clear and forceful decisions taken by those negotiating the Commission. We were keen to have a Commission to investigate the question of a Bill of Rights. I have worked on this with Nick Clegg and in due course we will do an announcement about the form of the Commission.
Q66 Mr Buckland: Lord Chancellor, I just want to ask you about another Commission, the Judicial Appointments Commission. A lot of us have a great interest in the operation of that particular body and we appreciate that a review is being conducted. Are you able to give us an indication as to the timescale of that review, when the review’s results are going to be concluded? Presumably, you are going to be looking at the cost of this particular Commission as well as part of your review.
Mr Clarke: I have not put a timescale on it so I hesitate to put one on off the cuff but we are looking at it now. The review will be carried out in the next few months. I have no particular criticism of the Commission except that it does cost £10 million a year to run, and it does have a very elaborate process, so that it seems now impossible to appoint anybody in under about 18 months, and one does have to ask, has it made any very noticeable difference to the judiciary? I see one or two members of the Committee think they are perfectly valid questions for us to be asking. They are perfectly well intentioned, and nobody doubts that, but if you are not careful with the modern executive, good intentions just get turned into processes which nobody evaluates after a time.
Chair: I think Mr Buckland might have omitted to mention that he holds a judicial appointment.
Mr Buckland: I should declare that I do hold a judicial appointment and I have been through the process of the Judicial Appointments Commission but I am not the subject of any pending application. That is my declaration, Chair.
Q67 Chair: I do not think we would expect you to be! Lord Chancellor, thank you very much indeed. We have managed to organise our affairs so we were not interrupted by a Division. We look forward to a lot of future contact with you.
Mr Clarke: I look forward to our future contact and the comments and the advice and support of this Select Committee. Thank you.
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