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Butter up the judges, release some prisoners: how David Lidington can survive as Justice Secretary

13 June 2017

5:03 PM

13 June 2017

5:03 PM

Liz Truss, I think it’s fair to say, was miscast as justice secretary. She was appointed only last July by Theresa May and demoted rather cruelly on Sunday night to be Chief Secretary to the Treasury. Truss is far more capable than her critics allow; but I would still argue that the job wasn’t right for her. Before her move to 102 Petty France, she had been an impressive education minister under Michael Gove and – bar one excruciating speech – was said to be a very capable environment secretary. But justice was a bad fit.

There are a few reasons for this. Whitehall whispers suggest that Sir Jeremy Heywood, the Cabinet Secretary, didn’t think she was ready to run such a big department. But such rumours should be treated with scepticism, even if it is true that MoJ has more employees – over 70,000 including prisons and probation staff – than a lot of FTSE 100 companies. I was a civil servant at the Ministry of Justice when she arrived (I’d been a speechwriter briefly for Michael Gove when he was justice secretary, and carried on in the same position working for Liz Truss for a few months). If there was one thing I learned in those months, it was that top civil servants love nothing more than conspiring against ministers, or undermining their ideas, if they don’t agree with their mission or style (she was often blunt). When things go wrong, it’s far easier to shift the blame on to a supposedly inept new minister, than to recognise that the department isn’t functioning properly. That’s the Whitehall way.

Liz Truss on the day of her swearing in as Lord Chancellor (Image: Getty)

But, if there is one thing I think Liz Truss got wrong, it was her all-guns-blazing approach to the judiciary, which began – possibly by accident – within days of her appointment. David Lidington, her replacement, might want to take note.

Bob Neill, the genial Tory chairman of the justice select committee, had been reported as expressing concerns over Truss’s lack of legal qualifications and experience. Suddenly, the Guardian reported some bombshell quotes from ‘friends’ of Liz Truss (code, perhaps, for special adviser). Criticisms of the new Lord Chancellor were ‘thinly veiled misogyny,’ said the source; they came from ‘old, male, pale judges and politicians’.

Within the department, it was said Truss had not authorised this attack and had no idea where it came from. But it was effectively a nuclear strike on the judiciary, coming after their cold war with Chris Grayling, and a subsequent thaw in relations under Michael Gove. It was also incredibly rude to Bob Neill, who Gove had gone to great efforts to befriend. In short, it was a total disaster – one that in some ways Truss never really recovered from.

The trouble with judges is that they feel under-appreciated, underpaid and overworked, as a recent survey highlighted. Most judges are well paid but could earn far more in private practice. They choose not to, partly out of duty, partly for prestige. But it’s the first point about being appreciated that really gets to them: they can be very sensitive sorts. So if you are going to reform the courts, and force the judiciary to open up to a wider pool of talent faster than they would like, as Liz Truss wanted to, it’s wise to start with diplomacy and appreciation.

So love-bomb the judges, butter them up and flatter them – it goes a long way. And when it comes to reform, they will be more willing to co-operate. Michael Gove did this very well, playing them like fiddles. Here’s a taster from his One Nation Justice speech:

It is my intention to do everything I can to support the Lord Chief Justice, Sir Brian and his colleagues in their work. Not for the first time in our history, it is our judges who see most clearly what needs to be done to help the vulnerable, the overlooked and the victimised in our society.

The judges loved him for this, and that respect trickled down through the legal profession. Liz Truss started off on the wrong foot, and didn’t noticeably improve. By the time she gave a short speech in Westminster Hall to judges at the opening of the legal year, last autumn, it felt like she had already lost them.

In March, her poor relationship with the judiciary culminated in an appearance from the Lord Chief Justice, Lord Thomas, at a House of Lords constitution committee hearing. ‘I regret to have to criticise her as severely as I have, but to my mind she was completely and absolutely wrong. And I am very disappointed,’ he said, referring to the fact that she chose not to defend judges when they were called ‘enemies of the people’ in the press after the Article 50 appeal. That might sound polite; but to give you an idea of the impact this had in the legal world, here is a picture of Lord Thomas that day from Legal Cheek, a popular blog:

Lord Thomas, the Lord Chief Justice, via Legal Cheek

Again, this was avoidable. As Lord Chancellor, Liz Truss did have a constitutional duty to ‘defend the independence of the judiciary’. She swore that oath in a ceremony at the Royal Courts of Justice. I saw her do it (and helped draft her speech for the occasion). Yet she said that because of her deep respect for the freedom of the press, she couldn’t say anything more supportive. That was not the right call, and subsequent statements seemed to recognise it. (But was she under pressure from Downing Street aides not to upset the press? One source hinted as much to me.)


Even more significant, to my mind, was the row over the announcement of the pre-recording of cross-examinations in adult sex crime trials. Truss told the Sunday Times that this would be fast-tracked from September. An announcement from the MoJ made similar claims. But the Lord Chief Justice was so cross about the story that he wrote to judges criticising the ‘misleading impression’ that had been given about it. And, in that same Lords committee hearing, he commented: ‘The Ministry of Justice is under-resourced. They do not have enough people who understand.’ Thug life doesn’t really cover it; this was all-out war.

Overall, this appearance by Lord Thomas was probably the moment that Liz Truss’s combative approach to court reform, and the judiciary in general, was shown to have failed. Her admirers will say she was brave enough to take on a vested interest, had very laudable and meritocratic aims, refused to be deferential or kow-tow, and would have made good progress if she had been left in post for a bit longer by a braver (or less beleaguered) prime minister. There’s some truth in that. Her critics, however, will say she took the wrong approach and it went as expected. I would argue that, at the very least, she should have followed Gove’s diplomatic example a little closer, at least to begin with. But there’s no doubting it: Lidington needs to patch up a relationship that is in a very unhealthy state. Above all he must show that he understands the distinction between his government role as Justice Secretary and his constitutional role as Lord Chancellor. He is said to be a historian, which might help.

After getting to know the judges, the next problem David Lidington will encounter is the utterly chaotic prisons system, where Truss had identified what was wrong and was beginning to attempt serious reform, largely along the lines set out by Michael Gove before her. In this area, I would argue, her all-guns-blazing style was better suited. She managed some major restructuring of the department, with an emphasis on ‘safety and reform’, and notably secured extra funding from the Treasury in the 2016 autumn statement for more prison officers.

There’s a Ministry of Justice playbook that’s probably being followed at the moment. You take the new Justice Secretary to the high security Belmarsh prison, have them photographed with the Prison Governor during a whistle-stop visit, introduce them to some staff, and publish the picture on the MoJ website. Certainly you don’t want it to emerge that a Justice Secretary has never set foot inside a prison.

But if Lidington really wants to get an idea of the state of the prison system, the ‘Category A’ high security estate is not the best place to start: it’s pretty well resourced – because the inmates are very dangerous – and well run. Instead he should visit a prison that has received a terrible inspection report. Like, for instance, Wormwood Scrubs, which was said to be ‘infested with rats and overcrowded’ last year. Or Wandsworth prison, one of the largest in Europe, where in 2016 BBC cameras filmed inmates openly smoking cannabis.

It’s this part of the prison system that will take up most of the Justice Secretary’s time.

Politically, it’s worth noting that Cabinet ministers at the moment are virtually unsackable. ‘Hang ’em and flog ’em’ commentators in the right-wing press will stay on side because the one thing they fear most is Jeremy Corbyn as prime minister. So Lidington should use this freedom to speak frankly about the prisons crisis.

First, he should admit that the prison population has grown too large. There are around 85,000 inmates now (about double the 1990 population – see graph above), who spend most of their days not being rehabilitated or educated – but locked inside their cells, often taking drugs such as spice and ‘black mamba’. As the chief prisons inspector put it in 2015: ‘It is hard to imagine anything less likely to rehabilitate prisoners than days spent mostly lying on their bunks in squalid cells watching daytime TV.’

Yes, prisons exists to keep the public safe, and part of their purpose is to punish crime. But what is the point of regimes like the above, where 59% of those who receive prison sentences of less than 12 months go out and reoffend again? It would help if the staff-to-prisoner ratio was improved for a start, so that prisoners can be taught basic skills like how to read, write and add up. One question: why are there still so many prisoners held indefinitely under ‘Indeterminate Sentences of Imprisonment for Public Protection’, even though some, according to the Parole Board Chairman, present a very low level of risk to the public? Given that the cost of keeping someone locked up is more than the fees at Eton – and there remain serious cash pressures at the Ministry of Justice – these inmates might be a good place to start.

A source flags up a more urgent problem coming down the tracks – a smoking ban that has to be implemented in all long-term and high security prisons by the end of August. ‘You couldn’t have come up with a more stupid date,’ I’m told. Officials are always wary of riots in the hot summer, when prison officer numbers are depleted due to holidays, yet somehow this is the date that has been agreed. Is Lidington going to go ahead with it? Is the timing clever?

He will have plenty of other red lights flashing on the department’s warning systems. Murders, suicides and assaults – both prison-on-prisoner and prisoner-on-staff – remain off the scale. Two people who know the system well have separately mentioned the words ‘corporate manslaughter’ to me, which illustrates the depth of the problem facing the government. The fact that so many older, more experienced prison staff are leaving, outstripping the rate of recruitment, also urgently needs addressing. Can Lidington persuade recently departed staff with experience to return? And if the Prison Officers’ Association are still up in arms about assaults on staff, understandably, why not introduce a new offence that immediately increases time in custody for attacks on prison officers? This would serve as a deterrent for attacks like ‘potting’, which, in the words of Urban dictionary, involves ‘dumping a steaming bucket of urine and excrement over the head of a much-loved prison service employee’.

Another question that needs asking: if NOMS (the National Offender Management Service) was such a disaster that it had to be closed down and rebranded, why is Michael Spurr, its former head, in charge of the shiny new HMPPS (Her Majesty’s Prison and Probation Service)? A review of the capability of the top team, I’m told by someone with experience of them, is overdue.

Perhaps the top priority, however, should be rehabilitation. It badly needs improvement, given the appallingly high level of reoffending among offenders mentioned above. Lidington should review which reforms in this area are working and which are not. Has Chris Grayling’s ‘Transforming Rehabilitation’ white paper had the desired effects, four years on? Worryingly, I’m told of a ‘collapse in morale and effectiveness in probation, particularly in the Community Rehabilitation Companies’ that were set up during his time in the department. If these aren’t working, then rehabilitation will be non-existent.

Judging by recent atrocities, yet another challenge that David Lidington will face is the treatment of Islamist extremists in custody. Some, as I pointed out in my article for this week’s Spectator, are considered so high-risk that they are locked up alongside the most dangerous murderers in Britain today. But unlike the killers, some are on course to be released. Anjem Choudary, for instance, was only locked up for five and a half years last year. Why not longer? And how much will be done not just to safeguard the public from the most subversive Islamist proselytisers, but to persuade them that they are wrong? Separation units for extremists, introduced by Liz Truss, are a very sensible measure; but they must actively reduce risk, not just isolate it.

It’s a strange thing, given its size and its importance in keeping the public safe, that the Ministry of Justice doesn’t have a particularly high status in Whitehall. The Home Office, and certainly the Foreign Office, are considered more prestigious to work for. But, as Justice Secretary and Lord Chancellor, David Lidington is about to discover what sort of hospital pass he has just caught. He is said to be brilliant by those who know him: I just hope he’s given longer in the job than his predecessors. There’s a hell of a lot to do.

Will Heaven was speechwriter to Michael Gove and Liz Truss at the ministry of justice

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