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What's In A Name?

BY Nony Ardill Policy Director Legal Action Group


In the days before the government reshuffle in June, there was a flurry of speculation about whether a ministry of justice would emerge from the anticipated shakedown. It later became clear that the home secretary, David Blunkett, had fiercely resisted losing part of his newly reorganised Home Office empire to the Lord Chancellor's Department (LCD). There are even rumours that he had put in a counter-bid to run the criminal court system, part of the Lord Chancellor's fiefdom.

However, the outcome was less dramatic than a ministry of justice - and some would say that it amounted to little more than a rebranding exercise. The LCD was superseded by the Department for Constitutional Affairs, incorporating most of its functions. The DCA - or, less respectfully, DeCAff - is led by a Secretary of State in the person of Lord Falconer QC; for the time being, he also retains the title of Lord Chancellor because this office cannot be wiped off the map without amending over 500 statutes that make reference to it. But the new incumbent appears genuinely committed to an agenda of reform, and has lost no time in seeking views on the shape of an independent Judicial Appointments Commission, the options for a Supreme Court and on the future of the silk system. All these initiatives are important steps in the right direction.

Those who support the idea of a fully-fledged ministry of justice have been left frustrated by the sense of a 'near miss', and believe that the Prime Minister should have taken a more radical approach in June. It is clear that the present arrangements are still marred by anomalies. The DCA does not have exclusive control of the justice system: criminal policy and procedure, and criminal law reform, all fall within the ambit of the Home Office. Like its predecessor, the DCA works with the Home Office and the Attorney General under the umbrella of the 'Criminal Justice System' (CJS), a collaboration justified in the name of 'joined-up' government and inter-agency co-operation.

But the assumption that all these departments can cheerfully sing along from the same hymn-sheet leads to certain difficulties. A prime example is the government's pursuit of a new balance between victims' and defendants' rights in the criminal justice system. 'Criminal justice - the way ahead', presented in 2001 as a 'crime plan' for the coming years, implied that the rights of victims could only be enhanced by reducing the rights of defendants. Policies in last year's criminal justice white paper, and now the Criminal Justice Bill, have been justified by this equation. Few would disagree that victims should be accorded better protection and greater respect - but this should not be at the expense of established safeguards for defendants such as the presumption of innocence and the criminal burden of proof, part and parcel of our adversarial system of justice for very good reasons. But there is no voice in Whitehall with clear responsibility for pointing this out.

Another, related, example is the current CJS focus on 'narrowing the justice gap', an aspiration which has been adopted as a key measure of 'business improvement' within the system. The CJS website explains that 'bringing offenders to justice is the best way of demonstrating to criminals that their crimes will not go unpunished' - but admits that only a fifth of recorded crimes result in a conviction. So it has set itself the task of bringing 1.2 million offences to justice by 2000-2006, and one of the main ways of achieving this will be by targeting persistent offenders.

So it is no co-incidence that major changes to the rules of evidence have been inserted into the Criminal Justice Bill. The provisions on hearsay would in most cases dispense with the court's discretion to exclude this type of evidence, and the definition of hearsay would be extended to include a representation of opinion. In certain circumstances, even multiple hearsay could be admitted.

Evidence of bad character - including previous convictions, a defining attribute of the persistent offender - will also be more readily admissible, a clear invitation to the police to waste no time in rounding up the usual suspects. And bad character evidence would be redefined so widely that even past acquittals or a pattern or arrests could be admitted in some cases. There is no doubt that relaxing these rules of evidence will increase the rate of conviction at trial, regardless of whether the accused is actually guilty or not. Measures like these will deliver a cheap and easy boost to the 'justice gap' targets without involving the expense of, say, increasing the number of police officers on the ground.

Another problem attributable in part to the absence of a defender of rights and justice within the government is the failure to adopt a criminal code. Most other countries have one, and there are strong arguments for codifying the piecemeal statutory and common law sources of criminal law that exist in this reference source for CJS professionals.

Sadly, the Home Office's lack of response to the Law Commission's initiative suggests that it has been given a very low priority. Given the competing and pressing demands on the departmental budget, ranging from policing and prisons to immigration policy and disaster management, this is perhaps not surprising. Although criminal law falls fairly and squarely within the Home Office brief, there is no way of forcing David Blunkett to move this project up the departmental agenda - despite its potential for promoting responsible citizenship


Part of the reason for these problems is the tendency to see 'justice' as a process that needs managing, rather than as the ideal of guaranteeing fair treatment for every citizen. If justice is downgraded to a managerial function of the state, then there is a problem in arguing that it matters which part of Whitehall looks after it. But if justice is accepted as a value that lies at the heart of democracy, then it follows that justice needs a champion within government. And to be effective, this champion should not be burdened with conflicting priorities and responsibilities.

The current vogue for blurring the boundaries between the different players in the justice system, in the name of managerial efficiency, has the effect of distracting from the fact that individual departments have - or should have - quite distinct functions. I would argue that the Home Office should be seen as the 'ministry of the interior' - the custodian of law enforcement, with responsibility for crime reduction, policing, prisons and probation - as well as immigration and asylum policy. It should not be responsible for setting the definitions and boundaries of crime, nor for the court procedures and processes that determine the guilt or innocence of the accused.

The Attorney General, on the other hand, represents the state's function as prosecutor. This role should be kept separate from judicial functions because, like the defendant, the prosecutor is a party to criminal cases that must be adjudicated by the courts. The Attorney General's role as legal adviser to the executive also demands that this office stands at some distance from other departments, including the Home Office.

As for the Department for Constitutional Affairs, what would be needed to transform it into a ministry of justice? As an important starting point, it should assume clear responsibility for rules of evidence and procedure in the criminal courts. The DCA should also take over the job of criminal law reform, to complement its existing brief of promoting the reform of civil law. Quite rightly, it is already set to assume greater control over the tribunals system. Earlier this year, the Lord Chancellor promised a unified tribunals service that would bring on board the main non-LCD tribunals, including the Employment Tribunals Service and the Appeals Service, currently run by the Department for Trade and Industry and the Department for Work and Pensions respectively. The unified service will form a distinct part of the justice system side by side with the Court Service.

But it is not enough for the DCA to acquire new functions, while continuing to measure success largely by reference to efficiency of process, value for money and consumer satisfaction. To merit acceptance as a ministry of justice, it must also make a visible commitment to acting as a custodian of fairness and impartiality and promoter of a rights-based society. The LCD had already taken over from the Home Office the task of promoting human rights, bequeathing to the DCA an important role in policing the activities of other departments. This fits in well with its responsibilities for the courts - which, after all, have the job of deciding when human rights have been violated by public bodies. But the DCA must work hard to promote a wider human rights culture in this country, a task that was assessed by the Joint Committee on Human Rights earlier this year as being badly in need of leadership.

And what of the leadership of a DCA more focussed on rights and justice? Thankfully, there seems to be acceptance within government that the time has now arrived for the multi-faceted role of the Lord Chancellor to be abolished. With the removal of this obstacle, it should become the norm for the Secretary of State for Constitutional Affairs to be appointed from the ranks of the House of Commons. This will allow proper accountability to MPs - both on the floor of the house, and through the newly formed Commons select committee for the Department - and should also facilitate leadership of the DCA by someone who can make a robust stand against other government departments when circumstances justify this.

Proper democratic accountability, together with Lord Falconer's changes and a reconfiguration of criminal justice responsibilities, would give the Department for Constitutional Affairs a clearer focus. If it also redefines its mission to give an explicit priority to custodianship of justice and rights, we may yet end up with a ministry of justice in all but name.

Nony Ardill Policy Director Legal Action Group

 
   
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