When Jack Straw, the Secretary of State for Justice, applied for membership of Inner Temple in the 1960s, he sought a small scholarship. Glancing down at the form, he read: “who is your father and what is his occupation, profession or station in life?” Having been raised as one of five children by a single mother on a council estate, this question did not bode well. Still in pursuit of this scholarship, he went before an interview panel which, this being pre-diversity awareness days, he sums up as a bunch of “crusty old benchers”. He was asked where his sister went to university and his reply—Keele—had them wrinkling their brows, perplexed, until one of them, hit by a moment of inspiration, asked: “Isn’t that a canal in north Germany?”
When I meet Jack Straw at the Ministry of Justice in mid May, he recounts this anecdote, recalling the moment with good humour but also with a sharpness of clarity that suggests the experience left its mark. Not surprisingly, he wasn’t awarded that particular scholarship but he did get a larger one much later. Despite  lacking “connections”, knowing just one solicitor in the whole of London, he went on to have a short but successful career at the Bar before the siren sound of politics came calling.


From the Bar to politics

Straw is keen to point out that his decision to relinquish being a barrister in order to enter politics and become an adviser to Barbara Castle was one over which he anguished a great deal. Politics, he says, was always in his blood—he had, after all, been President of the NUS during those heady days when the Union made the broadsheet front pages—but getting to the Bar had been a hard won achievement. He is frank about having worked very hard at Bar School, saying that to aspire to the profession, taking into account his background, had been “a piece of conceit”. However, in the end the decision seems to have been a straightforward heart-over-head one. While his pupil master urged him to pursue his career at the Bar, his head of chambers at Francis Taylor Building, Sir Edward Gardner QC, asked him what turned out to be a life-changing question: “In 20 years’ time, if you had the choice, would you want to be on the High Court Bench or in the British Cabinet?” The answer was easy. Although he says he had huge affection and respect for the Bar, he felt the tug to go off and do other things. The “other things” have included Shadow Education Secretary, Shadow Environment Secretary, Secretary of State for the Foreign and Commonwealth Office and Home Secretary.

The day we meet, he is 10½ months into his latest office as Secretary of State for Justice and Lord Chancellor (LC), a dual role that has seen him taking up the mantle of reform during what has been an unprecedented time of constitutional change. He admits that he was very aware that when he came to the role in the newly born Ministry of Justice there was a “great and understandable anxiety” on the part of the judiciary about the new relationship. Although he does not expand on this, the backdrop of disquiet is most likely to be attributable to a combination of factors: the Lord Chancellor’s role had been saved but pared back post the Constitutional Reform Act 2005 (CRA 2005); Straw was the first LC to be sitting in the Commons, making the potential politicisation of the LC’s role a concern; and there had been much consternation about the creation of the Ministry itself, following the Lord Chief Justice (LCJ), Lord Phillips’ disclosure that he first heard about its creation in the Sunday Telegraph.




Judicial independence

So I ask Straw how he saw his role in upholding the independence of the judiciary since there seemed always to be an inevitable tension: the judiciary were expected to be accountable to the public but in ways that did not impinge on their independence. I refer to Charles Clarke in 2006 who had wanted to meet with the Law Lords and after being refused, had vented his apparent frustration: “The judiciary bears not the slightest responsibility for protecting the public, and sometimes seems utterly unaware of the implications of their decisions for our security” (Report of the Select Committee of the House of Lords: Relations between the executive, the judiciary and parliament).

Straw is clear that upholding the independence of the judiciary, “day by day”, is a fundamental part of his job, especially as he sits in the Commons. He is keen to stress that he has always objected to “gratuitous criticism” of the judiciary and never done it himself. When faced with controversial decisions, such as the bail decisions in Newlove and Weddell, he says he tries to communicate just how the judiciary do their best and never make decisions lightly. However good, they are just human beings, he says. Even so, I wonder how the relationship works on a practical level, whether there are regular meetings. He tells me there are, but stresses their relationship is naturally a confidential one. He is keen to flag up the partnership agreement forged in January this year, a shared commitment between himself and the LCJ for the delivery of an efficient and effective justice system, describing it as a “quiet achievement”. I rather get the impression that Straw places a high value on “quiet” achievements; although the true value of this particular achievement has yet to be tested. The LCJ’s statement in a speech to the Royal Court in Jersey in May “we have yet to see how the partnership will work in practice”, suggests a cautious and circumspect approach on the part of the judiciary. The task ahead is certainly challenging. As the LCJ’s Review of the Administration of Justice in the Courts at the end of March testified, the court service is a tale of backlogs and delays—one sorely in need of a happy ending.







Prisons and sentencing

I turn to the other major misgiving that attended the birth of the Ministry, the unease about its responsibility for prisons as well as Her Majesty’s Court Service (HMCS). The week I meet Jack Straw there has been more negative publicity about the proposed new prisons—this time from Cherie Blair, in tandem with the release of her autobiography, Speaking for myself. I touch upon the current sentencing framework, wondering whether the need to be perceived as being tough on crime, being more prescriptive with sentences, was part of a framework that straitjacketed the judiciary and that as a consequence, we were stuck in a cycle with the prison numbers. He refers to the well worn Government statistics; that the crime rate had fallen by a third, so too the prison population and that there was an indirect correlation between the two. He also makes reference to the much publicised proposed extra 15,000 prison places aimed for 2014.

However, what had interested me the most prior to the interview was a trip he’d taken in February to Virginia to look at their structured sentencing arrangements. (The Sentencing Commission Working Group under the chairmanship of Lord Justice Gage had also visited Minnesota.) Straw says the trip was to see whether there were any lessons to be learned, although he acknowledges that none of the things could be transported “directly”. What had specifically intrigued me about that trip, however, related to a speech he’d given in Washington in February, in which he’d emphasised that judges must be given the room to make individual decisions without political interference. Later in the same speech, not contradictorily but not entirely in synch either, he had said the UK was looking for a “longer term mechanism better to control the supply and demand for prison places...a model in which Parliament sets the overall framework and sentences, leaving judges free to concentrate on their individual decisions, within a clear set of parameters, and with the capacity of the prison system taken into account.”

I make an oblique reference to the principles in that speech, the not always comfortable correlation between a prescribed sentencing structure and prison capacity. Straw suggests that in an inchoate way the number of prison places and resources has always been taken into account in sentence lengths, that this was inherent in the sentencing arrangements in any system. Yet while inchoate might be so now, since the interview it has become apparent that this approach may soon be abandoned in favour of something altogether firmer. Plans for a Sentencing Commission would seem to be linked with controlling the flow of criminals to prison or, in ministry-speak, “better planning for, and management of, demand on correctional resources”. Final decisions have yet to be made on this; not surprisingly the LCJ has sounded a note of caution. The Gage working group rejected a US-style sentencing grid, nor was a single consultation response in favour of the grid.







Constitutional renewal

We move on to discussing the Constitutional Renewal Bill, specifically the role of the Attorney General (AG) and the proposals which allow the AG—albeit having taken an oath to the Rule of Law—to intervene in decisions of individuals in cases of national security, with the caveat of having to report to Parliament when the power is used. I wonder, since national security was cited as the very reason for discontinuing the investigation into BAE, whether the Bill was enough to restore public confidence. I quote him a principle identified in the Corner House judgment, released a few weeks before the interview, which seems to summarise the problem neatly: “that submission to a threat is lawful only when it is demonstrated to a court that there are no alternative courses open to the decision maker”. If the AG retained such a power, I wondered how this would fit with the role of the courts? After pointing out that Corner House is being appealed to the House of Lords and embarking on a lengthy digression about the high number of his constituents working at the nearby British Aerospace plant, he answers my question by saying this: “there can be situations where there is an overriding national security consideration, where it is in the public interest, for example, for a prosecutor not to proceed and you need a transparent situation for dealing with that...Ultimately it comes down to a matter of political judgment, one involving international relations, it is not the proper job of the courts, nor appropriate for the courts, to have to do that, it is a matter for the executive. And I don’t think judges would want that either—why should they?”
I don’t pursue this further with him but it seems to me the question he poses at the end is the moot point; at what point international relations might cross a line and so become a matter for the judiciary is a complex and ongoing debate, as evidenced by the recent House of Lords judgment in R (on the application of Gentle and anor) v Prime Minister and others [2008]. Although in that instance, a traditional stance on the separation of powers was taken which, in some respects, reinforces and echoes what Straw was saying. In fact, the entire programme of constitutional reform seems to have been undertaken in order to make this very point, to make the separation of the powers more clear and distinct, to determine what is the domain and preserve of each limb of power. It is, perhaps, an irony that in looking to make lines clearer and more modern, the legality of the executive’s decisions seem to have been exposed to more challenge than ever. Although one could say the bedding down of the Human Rights Act 1998  has been a major factor.







Judicial diversity

Turning back to the profession in which he finds himself plunged once again, I wonder whether the “crusty old benchers” are a thing of the past? Now himself a bencher, he thinks so. Although most of the judiciary are, he says, “people like me”—middle class, white, male. One can only agree: the statistics, with only 12 women from among 110 High Court Judges, speak for themselves. Recently, the Judicial Appointments Commission (JAC) suggested there were “encouraging signs on diversity”, a statement seemingly based on the fact that many women and black minority ethnic candidates had put their names forward.

Yet even within the carefully constructed JAC press release announcing this, there was a clear sense, pun aside, of clutching at straws. I ask him how the judiciary can break out of the pale, male, stale cycle, bearing in mind the JAC has said it considers a key limiting factor into introducing greater diversity into the judiciary is the requirement for candidates to have fee paid experience. I also wonder whether the route suggested by the judiciary in  reply to the Governance of Britain consultation, that they saw merit in a “general statutory duty” on the JAC along the lines of s 64 of the CRA 2005, is a possibility?

Straw replies by referring me to the minutes of his statement on this to the Select Committee the previous day, where he pointed out that statutory eligibility criteria cannot be changed until the law is changed. He referred to non-statutory criteria, such as when a particular tribunal has a requirement for specialisation, and suggested the reason we have a high quality judiciary is that “we have got people who sit on the bench within the tribunals who know what they are talking about”, but “if you take that too far then you restrict the number of candidates who come through other than the absolute traditional route”. His suggestion was that since the fee-paid part-timer may not be available, we may have to revert to a probation period for appointments since if people have not had a particular experience in an area, they could then find it is completely inappropriate and “that raises important issues, because it is fundamental that at the higher levels of the judiciary there is tenure”.







Essence of Straw

When I first met Jack Straw at a press party at the Ministry back in January, he had mentioned his desert island book of choice would be The Franco-Prussian War by Michael Howard—which struck me as an interesting choice and I ask him to remind me why. Aside from simply enjoying history, he had wanted to understand what had led to this great sense of militarism by Germany towards the end of the 19th century and had been struck by a comment from a German General, von Moltke, who took the surrender of the French. Responding to the French General’s exclamation that the Germans had fought the war more strongly than expected, he had said: “Yes, but we have been beaten by you French 30 times in the last 30 years and we had had enough.”

Significantly, Jack Straw chose this book on Desert Island Discs in 1998—which was, of course, one year on from Labour ending 18 years in the political wilderness, a time when the party had simply “had enough” and organised itself to victory. Yet it seemed to me the tenacity at the heart of von Moltke, which had captured Straw’s imagination, also captured the essence of Straw himself.

There are only a small number of MPs still in the Commons today who entered in the 1970s and it is, perhaps, a mark not just of Straw’s passion for politics but an entrenched tenaciousness that he has stayed the course so successfully. So while it is true to say that Straw comes across as a modest and immensely likeable man, it is also fair to conclude that no one can thrive in politics as long as he has without being charisma-coated tungsten. I can’t help recalling that at the start of the interview, when talking about his time in student politics, he had said with genuine humility, “for some reason or other people seemed willing to elect me to positions”—yet humility had not hindered him from fixing on becoming NUS President. Now in his sixties, a stalwart of political life, it seemed to me his approach had probably always been akin to that of von Moltke—man who, quietly but firmly, treads the path he considers to be right with an unflinching eye on the end political goal.

Elsa Booth is commissioning editor of Counsel