Government troubleshotter Lord Carter of Coles has moved on from fixing legal aid to sorting out the chaos of prison policy.

Commissions are difficult political animals. So are advisory committees. Their members can waste of lot of their time. Lord Justice Gage is currently heading a working group to consider whether we should have a commission on sentencing. The recent fate of the Advisory Committee on the Misuse of Drugs is not much of an advertisement for the value politicians give to independent and thoughtful advice.


The major role in advising the government on drugs has actually been taken by the Daily Mail - whose headlines do not mince words. 'You must reclassify cannabis' the paper screamed on 4 April 2008. Against this the advisory committee had no chance with its evidence-based argument to the contrary. Chairman Sir Michael Rawlins explained somewhat plaintively why his committee had deviated from the Mail's line: 'We don't take into account "the message", we don't take into account policing priorities; we are obliged by law only to take into account harmfulness' (The Guardian, 7 May 2008).



Two decades of hyperactive home secretaries from Michael Howard onwards have sacrificed logic in criminal justice to the demands of political dog-whistles to electors stoked up by the likes of the Mail - and they want tough action. The result is chaos, most visible at the end point of the criminal justice system: prisons. Here, the whistling becomes a distinctly audible screech. Labour has vowed to increase capacity from the current 81,000 to 96,000 by 2014. Now David Cameron has joined in. Nothing less than 100,000 will do, he says.



There remain resonances of another approach. Shadow Secretary of State for Justice Nick Herbert told The Sun that his party's policies will have 'a new focus on rehabilitating prisoners' (8 May 2008). This seems somewhat far-fetched given the additional costs of building so many extra places. UK expansion is getting close to the prison-building plans of California - currently projecting 40,000 new places in a roughly similar time period. As a result, California will soon spend more on prisons than education. Its prisons are better known for their quantity than their quality.



In its chaos, prison policy resembles legal aid. So, no surprise that Jack Straw called in the government's favourite fixer, Lord Carter of Coles. Legal aid practitioners will remember him all too well. Lord Carter is smart enough not to tarry too long. Having solved legal aid, he went off to solve prisons. Research suggests that small, local prisons are best, easing links with families and encouraging rehabilitation. But large ones are cheaper. That made it a 'no-brainer' for Lord Carter: build four large 'titan' prisons in places where land is cheap, however inaccessible. At the end of his report Lord Carter threw in the thought that a sentencing commission might be a good idea.



Sentencing commissions originate in the United States. They are associated with two linked outcomes: better predictability and stiffer sentences. Lord Carter's goal was not, in itself, unworthy. He wanted a 'structured sentencing framework' that manages the prison population 'in a transparent, consistent and predictable manner'. US schemes work by creating grids and the judge reads off the sentence by taking a basic figure and amending it as instructed for mitigation or aggravation. The process is so predictable that it can often be reduced to numbers: so many for the crime, so many for previous, and so on. In some jurisdictions, you can check the efficiency of the judiciary by comparing them to computers. Indeed, at the extreme, major savings might be made by wholesale replacement of judges by handheld calculators.



The trouble is that, in the process of specifying such formulae, sentencing is almost invariably ratcheted up. Judges become less able - or less willing - to take account of extenuating circumstances. And sentencing gets tougher because the very process of articulating a structure for sentencing encourages a political debate that ends with toughening it all up. This is not a logically necessary consequence. It appears, however, to be almost inevitable politically. It has even happened in Minnesota, a state visited by the Gage working group and which is so generally liberal that it even embraces liberal notions of 'restorative justice' to an extent that would be unthinkable over here.



The working group speculates in a consultation paper on the usefulness of a commission issuing 'resource impact statements' to inform parliamentarians about the custodial consequence of legislation. Maybe, in another world, this would work. However, in this one the fate of the Advisory Committee on the Misuse of Drugs shows the future. Sentencing already has two new institutions, one only a decade old, the other only five years old - the Sentencing Advisory Panel and Sentencing Guidelines Council. If only politicians would just let both carry on the pragmatic process of developing coherent sentencing by consensus. The value of 'resource impact assessments' in determining prison policy will be just the same as the equivalent for legal aid: negligible. This is not a logical field of public policy.



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