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23 September 2021

What Dominic Raab needs to know to succeed as Justice Secretary

You could be a Johnsonian, populist Lord Chancellor or you could be a respected reformer. It is hard to see how you can be both.

By David Gauke

Dear Dominic,

Congratulations on your appointment as Lord Chancellor, Secretary of State for Justice and Deputy Prime Minister. It is clear that you were not entirely jubilant at this turn of events but, speaking from experience, at least two of these positions are fascinating roles. 

As someone with a legal background, in particular, you will appreciate the history and traditions associated with the position of lord chancellor. It is a great privilege to serve. You also have the benefit of having served twice as a junior minister in the department and I know you have given many of the big issues facing the department a great deal of thought.

You will not be short of advice but I thought I would chip in a few thoughts of my own, even if we have not always agreed on the big issues in recent years.

When I arrived at the Ministry of Justice in January 2018, there were two questions I asked myself. First, what type of justice secretary did I want to be? Second, how do I get more money out of the Treasury?

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Let us start with the money. The MoJ is underfunded. I write as a fiscal conservative and long-time Treasury minister but we took too much money out of the department. This was obvious in autumn 2016 when I was chief secretary to the Treasury and we agreed to increase the number of prison officers by 4,000. That has made a difference but there are still very many challenging issues related to funding in both the prisons and probation service and with the courts.

Covid-19 has made things worse and lengthened the court backlogs but we should not kid ourselves that all problems result from that. It is also the case that the expansion of police officers will result in more people being charged and more criminals being sentenced to prison. Keeping people inside is expensive – something around £44,000 a year – and, if the prison population increases you will need a capital budget that funds the building of new prisons.

The political problem is that the MoJ is rarely a spending priority for the public. For example, we should increase spending on courts maintenance but nobody is going to boast about that on an election leaflet.

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For this reason, I took the view that “shroud-waving” would be an ineffective way of releasing resources from the Treasury. Instead, I tried to demonstrate that we would use money well – a willingness to make tough and unpopular measures so that we were not shirking some political pain but also clear plans how resources could be better spent, especially if this could reduce future costs. If additional resources can be obtained, you need to convince the Treasury that this will enable reform by, for example, extending digitalisation of the courts.

The Treasury shared my desire to reverse the increase in the prison population that we have seen since the 1990s – which, if nothing else, is very poor value for money for the taxpayer – and they will be concerned if they think that any additional resources will just result in more people behind bars.  Resisting the endless calls for tougher sentences will win you friends in the Treasury.

The government puts a lot of store on being tough on law and order. You need to make the case that the whole criminal justice system – the police, the Crown Prosecution Service, the courts, prisons and probation services – are interconnected. Recruiting more police officers is popular but cannot be seen in isolation (nor is it always the most cost-effective way to reduce crime).

As for the type of justice secretary you want to be, my view was that those who enhanced their reputation in office were those who took their responsibilities to uphold the rule of law seriously and pursued a reforming and liberal agenda. Of course, this is not necessarily well-received with the tabloids or some on the right (you may consider that more important than I did) or quite what the Prime Minister is looking for.

What are you going to do with the Human Rights Act (HRA)? Peter Gross, a retired Court of Appeal judge, is expected to complete his review shortly and it will not be anything like as radical as the approach you have previously advocated of replacing it with a British Bill of Rights. Such an approach might play well with the Red Wall but I would be more concerned about the people of Esher and Walton if I was you. 

Even if you succeed in scrapping the HRA (a challenging and time-consuming task), you run the risk of the UK being taken more often to Strasbourg and being found in breach of the European Convention of Human Rights. You could advocate leaving the ECHR altogether but this would “send a negative signal to the wider world about Britain’s commitment to human rights” (to use your words).

Like the huffing and puffing over judicial review that has amounted to very little (I assume you won’t reopen that given that the legislation is published) my advice is best leave all that alone.

Once again, you have a choice. You could be a Johnsonian, populist Justice Secretary or you could be a respected reformer. It is hard to see how you can be both.

In any event, I wish you luck. You may need it.

Yours ever

David