Cameron Timmis looks at plans to divide the responsibilities of the home office and considers the implications of having a ministry of justice




Last month Home Secretary John Reid and the Lord Chancellor, Lord Falconer, revealed proposals to split up the Home Office. The division would give the Home Office responsibility for police, borders and counter terrorism, with a new ministry of justice overseeing courts, prison, criminal law and sentencing. Lord Falconer confirmed it was a ‘serious proposal’ which could be implemented in months, and without the need for legislation.



While it seems that security issues, and John Reid’s desire to shed some of the Home Office’s responsibilities, are the main driver – rather than arguments in favour of a ministry of justice – many nonetheless have welcomed the plans from the perspective of improving the justice system.



‘We have for many years argued there should be a ministry of justice,’ says Liberal Democrat Shadow Constitutional Affairs Secretary Simon Hughes. ‘That is still our strong view… we think it’s clearly important to separate the people who do the prevention of crime from the delivery of justice.



‘Our preference is that it would take that part of the Department for Constitutional Affairs [DCA] which is justice, but also take some things from the Home Office that are to do with the delivery of justice, that is prisons and probation… it should also deal with the Human Rights Act, equality and non-discrimination.



‘That’s the position we’ve held for a long time, and we’re encouraged the government is moving in the right direction.’



Many too in the legal profession believe the time has come for a redrawing of departmental responsibilities: a re-styled ministry of justice replacing the current DCA, taking some additional responsibilities from the Home Office. But there are concerns too, among them whether a ministry of justice should take responsibility not just for criminal justice policy but also prisons and probation, and whether the Lord Chancellor or a newly created minister of justice should lead such a department.



It is in the area of criminal justice policy where the current division of responsibilities between the Home Office and DCA seems hardest to rationalise. Whereas the DCA is responsible for the administration of the criminal courts, the Home Office is responsible for criminal law reform and procedure, as well as sentencing. (Yet, for example, criminal legal aid falls within the ambit of the DCA.)



Confusingly, there are two ministers responsible for criminal justice policy: Baroness Scotland at the Home Office, and Harriet Harman at the DCA. Similarly, the government body responsible for administering the criminal justice system, the Office for Criminal Justice Reform, is a cross-departmental office, which reports both to the Home Office and DCA, as well as the Office of the Attorney-General.



Jonathan Fisher QC, a member of the Society of Conservative Lawyers, but speaking on his own behalf, believes there is ‘much to commend’ a single ministry of justice. ‘I do think, if you look at the set-up at the moment, the lines between the DCA and the Home Office aren’t as clear as they should be in a modern world… I can see enormous advantages in expanding the DCA, it taking on some of the Home Office responsibilities and rebranding it as a ministry of justice.’



Some lawyers view this as unfinished business: but for a turf war between the Lord Chancellor’s Department and the Home Office, it is well known that at the time the former turned into the DCA in 2003, many ministers favoured creating a fully fledged ministry of justice. ‘The idea was to reconstitute the Lord Chancellor as a minister for justice [and] that has been slightly delayed because of a power struggle with the Home Office,’ says Hugh Tomlinson QC, a human rights specialist at Matrix Chambers.



While many support the idea of a unified ministry of justice, some have misgivings about it becoming too large. Michael MacNeil, policy director at the Legal Action Group, argues for a more streamlined ministry, focusing exclusively on criminal and civil justice, as opposed to ‘prevention and enforcement’ matters, such as the probation and prison services. In addition, he says, the ministry should ‘jettison’ some of the DCA’s additional functions, ‘which would no longer fit neatly’, citing freedom of information, administration of elections and ‘stuff to do with the Channel Islands’.



Roger Smith, director of law reform group Justice, also argues that the DCA needs to strip out some its current responsibilities: ‘I would say that something like legal aid has not benefited from the plethora of jobs the DCA has had to deal with… It should never have had such a wide brief. It should have been a department which interfaces between the judiciary and the legal profession, and is essentially about the rule of law – that’s what we argued when the DCA was established and that’s what we should have had.’



Others also urge caution. Jonathan Cooper, a human rights barrister at Doughty Street Chambers, sees good grounds for a single ministry but believes the reforms could come too soon: ‘There are strong arguments that we should be letting the DCA bed down, rather than go through more upheaval… it’s doing a good job in terms of managing constitutional issues and the courts, if not the legal aid reforms.’



It is unclear whether a ministry of justice would be headed by the Lord Chancellor; some have speculated that a new cabinet post would be created. Mr Cooper maintains that ‘it could only be a good thing’ to have an equivalent of a Lord Chancellor in the House of Commons: ‘It’s the democratically elected chamber and that’s where the minister should be held to account.’



Could this mean the final end of the Lord Chancellor? The government has already tried once to abolish the post, when it created the DCA and subsequently stripped the Lord Chancellor of his judicial powers (under the Constitutional Reform Act 2005). That Act also allowed for the post-holder to be a non-lawyer. Yet the title has been reprieved and Lord Falconer is now commonly referred to as Lord Chancellor, rather than Secretary of State for Constitutional Affairs. In fact, the DCA recently accepted amendments to the Legal Services Bill that replace references to the secretary of state with the Lord Chancellor.



Mr Fisher suggests that, even if a new cabinet post were created, the Lord Chancellor could still serve an important role as speaker of the House of Lords.



Another, more radical, reform could see a ministry of justice also absorbing the Office of the Attorney-General. This is the model in the US and Canada, and some other common law jurisdictions, where the Attorney-General is also head of the department of justice.



With the current controversy about the independence of the Attorney-General, specifically the potential conflict of interest between his twin role as guardian of the public interest and chief legal adviser to the government, it seems unlikely that the reforms would go this far.



Certainly one former Conservative Attorney-General, Lord Lyell of Markyate, is opposed to such a plan. He tells the Gazette: ‘The bundling of all these powers into one single ministry is likely to weaken the hitherto very high standards exercised by the Lord Chancellor and the law officers, and would blur the distinctions between their roles.’



Specifically, says Lord Lyell, an important strength of the UK constitutional arrangement is the separation between the offices: ‘The judiciary is the responsibility of the Lord Chancellor and the prosecuting authorities are the responsibility of the Attorney General… both are members of Parliament and are answerable in Parliament.’



There would be other complications. For example, would it be right for a single ministry to oversee both prosecuting authorities and the provision of defence services, as the DCA does through the administration of legal aid?



The Liberal Democrats also favour retaining a separate Attorney-General’s office. ‘We support the continuation of independent law officers,’ says Mr Hughes. ‘They should be appointed by government as the government has to have confidence in them.’ However, he suggests that – in a process similar to the Senate confirmation process in the US – all appointments to the position of Attorney-General and Solicitor-General should be first nominated by the government, then approved by Parliament.



Whatever form a ministry of justice takes, most lawyers believe it is a question of when, not if, such reforms will take place. ‘I think we will certainly see significant changes to the organisational structure of government in the areas of criminal justice,’ agrees Mr Fisher. ‘I think there has to be… at the end of the day, it’s not working.’



‘Whether it’s by a Brown government, or by a future government of a different political persuasion, is a matter of detail,’ says Hugh Tomlinson. ‘One or other of them is going to do it. It’s a measure that looks modern and radical and doesn’t have a huge cost. My guess is that is would be sooner rather than later.’



Cameron Timmis is a freelance journalist