Roger Smith looks at three problems that could rock the foundations of the Ministry of Justice, despite a political heavy-hitter being at the helm of the department


The creation of the Ministry of Justice (MoJ) has given legal services and the judicial system a heavy-hitter as secretary of state. He is not going to be fazed by the intricacies of legal aid policy or the financial concerns of judges. Legal matters may, therefore, get the attention of one of the most successful politicians of his generation. It is a pity that the structure of his department has such fundamental flaws that attention to legal issues may suffer in consequence.



The MoJ represented Tony Blair’s second bite at the Lord Chancellor’s Department cherry. The Department for Constitutional Affairs was a transitional arrangement that failed the test of time. The MoJ, at least in its current form, may well follow it. The arrangements for administering justice are not yet strong enough to remain stable.



The problems are, in essence, three: finance, focus and constitutional role. They all relate to the same point. Too many contradictions are rolled up in responsibilities that stretch from criminal justice, prisons and probation to legal aid, constitutional reform, the Courts Service and liaison with judges.



This is not to argue that the demise of the Lord Chancellor’s Department was wrong. Quite the reverse. The government should be commended for accepting that the time for change had come. The conflicting roles of the Lord Chancellor as judge, minister and legislator could no longer be reconciled. Chaos at the parent Home Office was no reason to mess up the justice ministry at birth.



The financial issues flow from the composition of the MoJ’s budget. Overall, it spends about £8.8 billion a year. Of this, £4.7 billion is for prisons and probation. Legal aid is only £2 billion. The domination of the budget by prisons would be no problem if policy was routine and expenditure under control.



But prisons are a mess. Indeed, many of the improvements of Jack Straw’s term as Home Secretary are now being wasted by overcrowding.



The Treasury will expect any overspend to be contained within the MoJ’s overall budget. This is why the judges have pushed so hard for control of their own budget. But they have proved well able to look after their own. It is legal aid which will be seen as the soft part of the budget – particularly now that its size can be regulated by ministerial diktat.



The problem of focus is similar. It is clear that Jack Straw is intellectually excited by the government’s constitutional agenda. He has even announced his conversion to a written constitution. Financially, however, he will have to be fixated on prisons. Lord Mackay was the last Lord Chancellor to show any personal interest in policy relating to legal aid. Lord Falconer pretty well left it all to Vera Baird.



Jack Straw is likely to find Lord Hunt equally useful. He will find it all too easy not to challenge the fallacies of the Carter review and the self-confident assertions of the Legal Services Commission that all will be well with present policy.



In addition, he has not survived so long without a superb political sense. If legal aid policy proves to be the disaster that many predict, then there is unlikely to be much evidence of the Secretary of State in the vicinity of the crime.



Finally, the absorption of executive responsibility for prisons and probation within the MoJ perpetuates a heresy. The department responsible for justice should not also be responsible for dealing with crime and its consequences.



The government is fixated by increasing the number of ‘offenders brought to justice’ – that is, found or admitting guilt. But the test of a good judicial system and, indeed, a healthy society is actually a high acquittal rate. Come up with a country where the number of arrests equals the numbers of convictions and let it be unmasked as China, North Korea or Burma. Legal aid, an independent judiciary and jury trial all inhibit convictions, and are specifically designed to do so.



We need a department and a secretary of state that vigorously defend within government the rule of law, the independence of the judiciary and good governance.



Under Mr Blair, we had sustained attempts to remove judicial supervision of executive decisions and personal assaults on judges by ministers (notably, Messrs Blunkett and Reid). This is not acceptable. The Secretary of State for Justice should be strong enough within government to maintain the role of the Lord Chancellor in protecting the important niceties of the constitution.



It is nothing short of nonsense to throw prisons in with legal aid and it will not last. Hopefully, this is a point which may well emerge from one of Jack Straw’s major responsibilities: constitutional reform in line with The Governance of Britain White Paper. In that case, the breadth of his responsibilities will have a beneficial effect: they will be narrowed. It is only a pity it will be too late to stop the selling of blocks of legal aid cases as if they were consolidated sub-prime loans.



Roger Smith is director of the law reform and human rights organisation Justice