Westminster Watch

As the snap general election is announced, the Ministry of Justice turns 10 and faces similar challenges to those in the dying days of the Blair government, writes Mark Hatcher

On 9 May the Ministry of Justice (MoJ) will celebrate its 10th anniversary. 

To coincide with this event, the Ministry plans to publish its values statement to help it to deliver its strategy for the next 10 years as set out in a hitherto unpublished document. In a section called ‘The Justice Story’ readers learn that ‘we are the guardians of our justice system and of its global reputation for being fair, open and dynamic’. It is a bold claim.

It is worth recalling the circumstances in which the MoJ was created for their contemporary significance. The idea of a Ministry of Justice had been debated since the middle of the 19th century and it featured in the Labour Party’s manifesto for the 1992 general election, five years before it came to power. But even by 2007 with Labour still in office there had been very little public consultation about this idea before the announcement, on 9 May 2007, of the creation of the MoJ, to replace the Department for Constitutional Affairs (which itself had been created only four years earlier from the Lord Chancellor’s Department).

The MoJ arrived, virtually as a fait accompli, courtesy of the Royal Prerogative which allows the Prime Minister at will to configure (or re-configure) their administrations, by creating new departments, changing ministerial responsibilities and sharing out functions according to what is expedient. The trigger for the announcement of the MoJ was the claim, made a few months before, by the then Home Secretary, John Reid that the Home Office had become ‘not fit for purpose’.

With the benefit of hindsight Reid’s assessment could be seen as indicative of the fact that moves to split up the Home Office and transfer certain functions were actually already well under way, in the background. The judiciary was taken aback by the timing of the announcement and the absence of consultation, not least about measures to ensure judicial independence. Temporary working arrangements needed to be agreed between the Lord Chief Justice and the Lord Chancellor to pre-empt what, according to the media, might have been the UK’s first mass ‘walk out’ by the judges.

The media actually took little interest in the announcement of the new ministry because they were far more preoccupied with the intensely febrile Blair-Brown relationship. On 10 May The Sun carried a hostile piece about the ‘bumbling’ Lord Chancellor (Lord Falconer) who was accused of being ‘soft on crime’. On his first day in office he had just taken responsibility for the National Offender Management Service (NOMS) and the prison crisis which had been transferred to him by Reid. On the same day, during a speech at the Trimdon Labour Club, Tony Blair announced his intention to resign as Labour Party leader and Prime Minister. Media interest in potentially far-reaching changes in the machinery of government affecting the administration of justice promptly evaporated.

The then Shadow Spokesman on Home Affairs, David Davis described the new arrangements as ‘a dog’s breakfast’. The Guardian summed up three unresolved issues of principle at the time in its editorial comment on 10 May 2007. First, money. The judges were worried that the courts would have to compete for funding directly with the political priority of prisons. Secondly, the judiciary feared the loss of the direct link to the Cabinet which the Lord Chancellor traditionally provided, especially if future justice secretaries were elected politicians with no legal training. Thirdly, the desire to curry favour could contaminate judgments when, as in prison law, the Justice Secretary might be the respondent.

Six weeks after the MoJ was formed, Gordon Brown replaced Charlie Falconer with Jack Straw as Lord Chancellor and Secretary of State for Justice. The following year the Ministry moved from a nondescript office block in Westminster’s Victoria Street (since demolished and named after Lord Chancellor Selbourne, who had created the Lord Chancellor’s Office in 1885) to its current location nearby at 102 Petty France, the old Home Office building (and incidentally the site of the house in which the philosopher and legal reformer, Jeremy Bentham lived and after him the father of John Stuart Mill and the essayist and critic, William Hazlitt).

Designed by Sir Basil Spence in the brutalist style which became popular with governmental and institutional clients of the 1960s, the MoJ’s premises were known by Jack Straw (who had been Home Secretary from 1997-2001) and other inmates who worked there, as ‘the Lubyanka’, after the headquarters of the KGB in Moscow.

It is difficult to feel an affection for this building with its fortress-like concrete pretensions. But from the suite of offices of ministers and the senior management team at the top of the building the views over St James’s Park towards Buckingham Palace, Carlton House Terrace, Whitehall and the Palace of Westminster are undeniably impressive.

Ten years on, the strategic challenges facing the MoJ today are in many respects similar to those facing ministers and officials in the dying days of the Blair government in 2007: a crisis with prisons, relations with the judiciary strained especially over judicial independence (as reflected in the Lord Chief Justice’s recent ferocious attack on the Lord Chancellor before the Lords’ Constitution Committee), the continuing pressure on legal aid to provide effective access to justice and the need to modernise the courts and tribunals structure coupled with recent (un-attributable) comment that the MoJ is not fit for purpose, accompanied by mutterings that the Lord Chancellor (the third non-lawyer in succession) is ‘not up to it’.

The added challenge today of course is Brexit and the need, after more than 40 years of legislative and other activity, to decouple the UK from a vast network of relationships with the EU, with enormous constitutional and other implications. Sir Jeremy Heywood, the Cabinet Secretary, has rightly referred to the UK’s decision to withdraw from the EU as ‘the biggest, most complex challenge facing the civil service in our peacetime history’.

Although (as of February 2017) the Civil Service has created more than 1,000 roles in two new departments (the Department for Exiting the EU and the Department for International Trade), the inescapable fact is that the government is asking the Civil Service to manage a huge raft of important reforms even though it has reduced the size of its workforce by 26% since 2006 and imposed significantly smaller budgets.

The scale of the challenges facing the MoJ and other Whitehall departments, as well as Parliament in holding the Executive to account (and scrutinising the ‘Great Reform Bill’ shortly to be published), is becoming increasingly clear, not least in relation to the capability of the civil service to deliver the government’s agenda. The work of government is becoming more technical, continuing budgetary restraint is putting pressure on departments, and the decision to leave the EU means government will have to develop new skills and take on work previously undertaken by others.

As the National Audit Office (NAO) noted in its recent report to the Commons Public Accounts Committee, 22% of posts were unfilled for senior recruitment competitions chaired by the Civil Service Commission in 2015-16. Sir Amyas Morse, Head of the NAO, has commented with concern that, in the absence of a short-term solution to its acknowledged capability gaps in three main areas needed to manage the transformation of organisations or service delivery (digital, commercial and project delivery skills), government departments must get better at planning and prioritising their activities and be prepared to stop work on those it is not confident it has the capability to deliver.

The ability of the MoJ to effectively deploy skills in precisely these areas will be a critical success factor for the Prisons and Courts Reform Bill [which now looks unlikely to proceed before the general election] and for the successful implementation of the Ministry’s strategy for the next 10 years, as it seeks to fulfil its key objectives of creating a modern courts and justice system, creating a prison and probation service that reforms offenders, promoting Global Britain and protecting the rule of law; and creating a transformed department that really does deliver excellent services.

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Mark Hatcher

Mark Hatcher is Special Adviser to the Chairman of the Bar. After working at the Law Commission and in the House of Lords, he became Head of Global Public Affairs at PwC. He is a Bencher of Middle Temple, as well as being a priest. He is Reader of the Temple.