Lord Chancellor takes Ministry of Justice role as Home Office split sparks concern

The new Secretary of State for Justice has confirmed that he will remain in the role of Lord Chancellor when taking up his newly formed post.

Lord Falconer of Thoroton, who was last week (29 March) declared as head of the new Ministry of Justice, said it was for “this prime minister and any future prime minister” to declare who is Secretary of State for Justice and who is Lord Chancellor.

Falconer did note, however, that both roles would be occupied “invariably by the same person”.

“The Lord Chancellor can operate in the Commons too,” Falconer said. “It’s never happened before, but there’s no constitutional bar to it.”

Falconer said one of the roles for the Ministry of Justice would be to implement “sense in sentencing”. Also, the role and usage of prisons would be clarified and a framework of non-custodial sentences were to be promoted.

And following a spate of problems with prison overcrowding, Falconer conceded that the new body had a significant challenge to face in improving public confidence in the current sentencing framework.

Furthermore, the new ministry must clarify the role and limitations of prisons to better manage the burgeoning prison population.

“The current prison population is 83,303,” said Falconer. “This is the highest it’s ever been. But we’re building 8,000 more prison places – everything we do is to protect the public from more reoffending.”

However, he ruled out the notion that judges should take note of prison spaces available before passing sentence.

“The current position is that it’s not for judges to take into account resources when handing out sentences,” he said. “That would need to be addressed by legislation.”

The Lord Chief Justice Lord Phillips has already voiced concern that the new ministry should not become bogged down in additional responsibilities that may interfere with the court service. Falconer accepted that the judiciary was right to have concerns, but observed: “[Phillips] does not object in principle to the creation of the Ministry of Justice.”

He noted that the changes would allow the courts and prison and probation services to operate in one ministry, providing a clear political focus. “You get a political drive and no reduction in local cooperation,” he said.

Michael Smyth, head of public policy at Clifford Chance, welcomed the new body and noted that the distinct separation of duties would allow the Government to focus its efforts.

He said: “The move separates out the detection of crime from the justice system – making the Home Office closer to a Continental European interior ministry – and will allow the new Ministry of Justice to do what it says on the tin, namely supervising defendants through the trial and sentencing system”.

Further support was lent by the Law Society. Law Society president Fiona Woolf said she was particularly in favour of the transfer of responsibility for criminal law and procedure to a dedicated minister, who will ensure “the fairness of the justice system as a whole”.

However, Falconer’s appointment and the long-expected separation of the Home Office was met with concern by some. Chief executive of 7 Bedford Row Stephen Allen was sceptical about the changes to the Home Office being rushed through. “I think anything coming out of this government is a cause for concern,” he said. “The biggest thing seems to be that they’ve weighed in and changed things too quickly.”

Allen claimed that the split-up of the Home Office was a kneejerk reaction to its recent failures. “The speed at which this is happening shows the Government hasn’t thought this out properly,” he argued.

Law reform and human rights group Justice called on the Government to publish a memorandum of the rule of law obligations on the secretary of state for the proposed department, and that Parliament consider the implications of any proposed merger.

It also contended that more consideration should be given to separate funding arrangements for the judiciary and Her Majesty’s Courts Service.

Justice director Roger Smith warned that, in creating the new ministry, too much bias was afforded to the Home Office. He said: “Protection is needed for the continuing rule of law obligations of the new ministry.”