Examination of Witnesses (Questions 89-141)
RT HON
JACK STRAW
MP
10 MARCH 2010
Q89 Chair: Good morning, Lord Chancellor.
We are sorry to hear that Bridget Prentice is not well.
Mr Straw: Yes,
I am very sorry, but she is really rather poorly. She has been
off for three days.
Q90 Chair: She has our very good
wishes. We are working to a very tight timescale on our report
on the Civil Law Reform Bill. Since we have a few technical questions
outstanding, we intend to have those dealt with by our Committee
staff and your officials outside the meeting, but I would just
like to ask you why these 1999 proposals have taken until the
last days of this current Government to bring into legislation—and
then only draft legislation, so that they still carry over into
the next Parliament?
Mr Straw: I cannot give you a
complete answer to that—
Q91 Mr Hogg: I do not think you should
try.
Mr Straw: If I may say this, Mr
Hogg—just now. I will certainly write to the Committee.
Obviously eight years of this period predate my position in the
Ministry of Justice, but I will find out. It has been in process
since I have been there. One of the difficulties—and those
who have served in governments here will recognise this—is
that this is an important measure but there have always been other—
Q92 Mr Hogg: More important matters.
Mr Straw: —demands on the
legislative programme in the past which have meant that it has
been squeezed out, because it is worthy—I actually think
very important in terms of what it is doing—but it has not
been seen as such a high priority. That is the honest truth about
it, but I will send you further and better particulars. There
has also been an extensive period of consultation. The original
proposals, for example, in respect of damages following fatal
accidents, which were in the Law Commission proposals, have themselves
been refined since then. But if you are saying: "Does that
take 11 years?" the answer to that is no.
Q93 Chair: That is what I thought
you would say, and it reflects a general concern that the Law
Commission, which is a very high powered and impressive body,
does a great deal of work, and the time taken to bring that work
into effect (because it is always in conflict with the Government's
urgent desire to produce another Criminal Justice Bill or something
like that) starts to make the effort put into producing the work
disproportionate if it is not going to be achieved.
Mr Straw: I am aware of that.
With my full encouragement and support, Michael Wills has done
a great deal of work over the last three years to improve the
flow of legislation, which follows from Lord Chancellor's proposals.
We had changes—which were in the 2009 Act last year, from
recollection—which ensure, for example, that the Law Commission
make an annual report about progress—which is a way of getting
progress on their reports on the agenda of this place and therefore
on ministers' agendas—and, also, that we make better use
of the fast-track procedures for legislation in both Houses. That
is what we are aiming to do. It has not been a satisfactory position.
The Law Commission have done a terrific job, and I am well aware
of the fact that it is demoralising for them and their staff if
they produce very good proposals which are then left on the shelf.
We are trying to break through that.
Q94 Chair: Thank you very much. I
am going to turn to a number of wider issues. I am going to start
with a Freedom of Information issue. There have only been two
occasions when the Information Commissioner has recommended the
disclosure of Cabinet minutes. One was Iraq. The other was devolution
last December. You told the House that disclosure of the devolution
papers was not in the public interest because it undermined collective
responsibility and effective government. That sounds to me like
an argument that you would use against ever disclosing any Cabinet
minutes. Were you using the power that you had to veto the disclosure
of specific Cabinet minutes to take up a position, which the legislation
does not have, that no Cabinet minutes shall ever be disclosed
by the Information Commissioner's requirement?
Mr Straw: No, most certainly I
was not. That would be contrary to the structure of the Act and
an abuse of the discretion that is given (in this case to me)
under section 53 of the Act. In each case you have to judge the
merits or demerits of a section 53 decision strictly on the basis
of the information which it is proposed by the Commissioner or
the tribunal to release at that time, so this is not remotely
a way of bypassing the legislation. I have set out in both cases
very detailed explanations about why I reached those decisions,
and we followed strictly the non-statutory procedure, with consultation
with Cabinet colleagues and so on in advance. There has been a
high level of consideration given to this, including by meetings
of the Cabinet, with the full papers available to members of the
Cabinet, and on the basis of that consultation I formed those
judgments. I would just make this wider point: section 53 is there,
as I have said in the House on a number of occasions; it is a
fundamental part of the architecture of the Freedom of Information
Act. The Act would not have come in without section 53 being there
because it is there as a balancing measure for what are otherwise
the most stringent and powerful Freedom of Information provisions
of almost any jurisdiction in the world. I do resist very strongly
those who are now seeking to cherry-pick the Freedom of Information
Act and say that requesters are entitled to use, say, sections
35 and 36, and the Commissioner and the tribunal are entitled
to come to their decisions, but ministers should go into a self-denying
ordinance about ever using section 53. That is not how the Act
is established. I can say this without any challenge: the Government
would not have recommended the Act to the House, following a series
of changes greatly to strengthen its provisions, if section 53
had not been there.
Q95 Chair: Can you give the Committee
a sense of what it is about devolution discussions which would
have caused you to take what you now insist was exceptional action
to use section 53, rather than an attempt to establish that Cabinet
minutes are never disclosed?
Mr Straw: That is not the policy.
Q96 Chair: Accepting for the moment
that that is your position.
Mr Straw: But it is also the law.
If the law had proposed that there should be an absolute exemption
for Cabinet minutes, that is what the law would have said. It
does not say that. Let us be clear about that. If I can repeat
what I said in the statement of reasons that I gave—
Q97 Chair: I thought when I asked
the question it might come fresh to your mind, as a new form of
words might.
Mr Straw: Plenty of things come
fresh to my mind, but I set out in detail, in that explanation
which I gave, as to why I had come to that decision. There were
a number of areas where, you will recall, I took issue with some
of the facts of the Commissioner's judgment, including the extent
to which those who were round the table at the Devolution to Scotland,
Wales and the English Regions (DSWR) Cabinet Committee in 1997
and 1998 were still active, because I think the Commissioner had
suggested only one was still active when in fact many more are
still active in Parliament and in Government. The overall reason
why I came to that judgment was because I judged that the release
of these minutes would be prejudicial to good government. Everybody
I know accepts the importance of ministers being able to come
to collective decisions in confidence.
Q98 Chair: That seems to be sliding
back to the general argument.
Mr Straw: I am sorry, there is
obviously a general principle which is set out in the Act as well,
but it is the application of the general principle. It is impossible
to make judgments in respect of a veto or anything else without
having general principles which are then applied in particular
cases.
Q99 Chair: Let me turn it round and
say to you: can you think of a Cabinet discussion that you have
taken part in in recent years which, if the Information Commissioner
required you to disclose it, you would not veto?
Mr Straw: If I may say so, I am
not going to get into the realm of speculation. It is the case,
by the way, that one document relating to a Cabinet sub-committee,
which was actually the agenda (agendas can be quite revealing),
has been released. There have been relatively few requests, as
we have said, which have gone to the Commissioner. The other side
of this is that a good deal of inter-ministerial correspondence
has been released.
Q100 Chair: I cannot escape the conclusion
that there are no Cabinet minutes whose disclosure you would not
veto.
Mr Straw: That is a wrong conclusion.
The conclusion, obviously, Chairman, you decide to come to is
a matter for you, but I am just telling you, as the person who
has had to exercise this discretion on two occasions, that is
wrong. It is not what the law says and it is not what I have said
in very detailed explanation. I also just repeat the point, and
you may take a different view about this (I hope you do not),
that section 53 is an inherent and integral part of the whole
architecture of the Act. Even with section 53, this is still amongst
the strongest and most incisive freedom of information legislation
in the world, contrary, I may say, to those who continued to claim,
including people from your benches, that all we were doing was
putting into statutory form the previous freedom of information
code.
Q101 Mr Tyrie: We were both supporters
and remain supporters of FOI. I have had expressed to me quite
a number of concerns by officials, informally, that FOI gets in
the way of enabling them to offer free and independent advice
to ministers; it inhibits them from writing down things from time
to time. Is that a problem that has ever been brought to your
notice? Do you think there is something we should do about it?
Mr Straw: It is certainly a comment
that has been made to me. I do not, myself, feel, in my Department,
that officials have been reluctant to say what they think about
issues—
Q102 Mr Tyrie: On paper.
Mr Straw: On paper. It has certainly
not made me reluctant to say what I think about issues on paper,
because my view is that if you are confident about the reasons
that you are offering (in this case a minister is offering) about
why they are either going to accept or modify or reject advice
which is put forward, then you should be ready to justify that.
That is not, by the way, a green light for saying this should
be made available on the intranet or internet that day, or even
in anything less than what will now be 20 years. Mr Tyrie, it
is quite often said that it is an inhibition. Bear in mind that
there is a difference in terms of the kind of sensitivity of most
of the work in my Department compared to some other key departments.
Q103 Mr Tyrie: I am asking the question
in the round, with your constitutional hat on.
Mr Straw: Indeed. I just wanted,
as it were, to make your point. When I was at the Foreign Office
(I was only there for 18 months after the FOI Act came into force)
there was, I think, that sense around, and I have heard that said
in respect of other departments handling more sensitive material—for
example, in the Treasury. I am anxious here to not either dismiss
these opinions, which you have also received, nor to say they
are fact. I think, therefore, now that you have raised it, what
we need to look at is whether there would be a way of having an
independent scrutiny by people who were neither parti pris
to ministers or prospective ministers, nor to the Information
Commissioner and the Freedom of Information campaigners, who could
both look at a series of submissions and compare them with equivalent
submissions made before the Freedom of Information Act became
law, because it came into force in 2005. So to look back, before
it was, as it were, even a gleam in the eye—
Q104 Mr Tyrie: So get someone in
to take a look at this?
Mr Straw: To take a look at this,
and also to talk to officials and to try to come to a judgment
about that. I will try and get that going.
Q105 Mr Tyrie: Thank you very much.
With your permission, Chairman, I have got another set of questions
I would like to ask. I am sorry I will have to go later on because
the Wright Committee is meeting at eleven, of which I am also
a Member. Last night you made a vigorous case against creating
constituencies with the same number of voters. Why?
Mr Straw: I made a vigorous case
against the specific proposals of the Conservative Party, both
in terms of the method that is being used and the particular system
that is proposed. Why? I say "why" because the amendments
that the Conservative Party put down to the Constitutional Reform
and Governance Bill, for the first time, I believe, in our history,
established one overriding arithmetical rule, which was to trump
all other considerations. So they were proposing we should set
an electoral average which would come out at about 75,000 (because
the number of Members would be reduced by 10%) and then the overriding
rule was going to be there should be a deviation allowed either
side of that of no more than 3.5%—so it would be 72,000
and 77,500 would be the maximum. That would override all other
considerations of community, of island communities, of mountains,
of county boundaries, and so on. That would be it. It would mean,
for example, that in Scotland, the island constituencies which
are separate and discrete, at the moment (and they are small but
no one, I do not think, has ever argued about this), would get
amalgamated with large chunks of the mainland; it would mean that
the Isle of Wight, which is one of the largest constituencies
in the country, and as I understand it there has been a demand
from the Isle of Wight to be a single constituency, because I
think it is about 110,000 electors—what would happen there
would be that a chunk of it would become amalgamated with the
mainland. The Isle of Wight, obviously, just to take that as an
example, is growing and it is getting to the point where under
the normal rules it would be a candidate for two consistencies.
Let me just say, it is hardly a secret the Labour Party has no
great equity in the Isle of Wight.
Q106 Chair: Or in Orkney, Shetland
or the Western Isles.
Mr Straw: There are other points.
I would recommend, Mr Tyrie—I am sure you have seen this—
Q107 Mr Tyrie: I only asked one preliminary
question and I have had quite a long reply. The question was,
if you recall: do you feel, in principle, (I am rephrasing it
slightly) that there is something wrong with having constituencies
of equal size? You have said you oppose the specific proposals
made by the Conservatives. Do you support the principle, nonetheless,
that we should try and have the same number of voters per constituency?
The principle.
Mr Straw: Yes, the principle,
but I support the way that the principle these days is, and has
traditionally been, balanced by other considerations.
Q108 Mr Tyrie: So you support no
change to the Boundary Commission?
Mr Straw: No, just hear me out,
Mr Tyrie, because you ask the questions and I will give you the
answers—I think that is the way it works.
Q109 Mr Tyrie: I am just trying to
speed things along.
Mr Straw: One of the major difficulties
which the Electoral Commission have brought up, just recently,
is that there are three million eligible voters who are not registered.
They happen to be, mainly, in urban areas—
Q110 Mr Tyrie: That is a very interesting
question, but what I am trying to do is address one very straightforward
point that you made at length in a speech last night. You described
these proposals—that is the proposal to have constituencies
with the same number of voters—as "gerrymandering".
How can it be gerrymandering to create constituencies with the
same number of voters?
Mr Straw: Look at America, is
my answer to that, where they have an iron rule of equal-sized
constituencies but ended up with the worst gerrymandering in the
world.
Q111 Mr Tyrie: As you well know,
that it is because of Supreme Court rulings, enabling that to
perpetuate, whereas we have an independent Boundary Commission
for the whole country which would prevent that gerrymandering.
You know that very well and you know that point was completely
bogus when you made it, do you not?
Mr Straw: It is far from bogus.
Mr Tyrie: You are a lawyer and you should
know how the gerrymandering process—
Q112 Chair: If you ask the Secretary
of State a question, he has to be allowed to answer it, even though
he might be better if—
Mr Straw: First of all, what changes
would we make? This is a concern, or ought to be, to all those
who have other than a wholly partisan interest in this. We have
got to ensure that the eligible voters are factored into these
calculations. Otherwise it becomes highly partisan, because, as
the Electoral Commission (not I) have pointed out, most of these
voters are in urban areas, which happen to be constituencies of
Labour or Liberals and not the Conservative Party. I recommend
an article in the latest magazine of the Royal Statistical Society,
which is very critical of the crude nature of the Conservative
proposals, and the man who wrote this has nothing whatever to
do with the Labour Party, let me say; he is a statistician. The
other point that is raised is the suggestion that, somehow or
other, the current operation of the electoral system is biased
in the Labour Party's favour because "it takes fewer votes
to elect a Labour MP than it does a Conservative MP". As
the author of this article points out, Nick Moon, that has not
always been the case, by any means; there have been plenty of
decades—
Q113 Mr Tyrie: We will get the chance
to read these proposals.
Mr Straw: My final point on this
is this: every single constitutional change of any significance,
which has been introduced by this Government, has been initiated
by the Government but has been subject to the most detailed cross-party
discussion and either we have reached cross-party agreement or
we have proposed that it should go to a referendum. This is an
attempt, and it proves the partisan motivation of the Conservative
Party, where there is no effort whatsoever to seek any kind of
cross-party discussion, on such a fundamental issue as constituency
boundaries.
Q114 Mr Tyrie: Do you think it has
helped this debate—that is the debate about whether we should
have constituencies of broadly equal size—to have as your
opening salvo, to suggest "Conservatives aim to `butcher'
scores of constituencies for sordid political ends"? Do you
think that was the sort of language of consensus you have just
asked us to try and get to?
Mr Straw: First of all, I think
it is a consequence of what is proposed. I think the fact that
there has not been a single effort made by the Conservative Party,
at any level, to seek any kind of discussion with the other parties
indicates that the judgment which I have made and the criticism
is entirely justified.
Q115 Mr Tyrie: These proposals have
been on the table for five years.
Mr Straw: All the more reason
rather than less why there could have been discussions with us.
Q116 Mr Heath: Changing the subject
completely and going to legal aid and Sir Ian Magee's report,
I think many of us were slightly alarmed by what he said. Just
to quote one particular reference: " ... the level and breadth
of concern is now substantial and there is an urgent need for
action, particular in respect of financial controls on expenditure
of significant sums of public money." That is in respect
of the Legal Services Commission. It does sound, from that report,
as though the Department has fallen down on the job of oversight
of the Legal Services Commission. Would you accept that?
Mr Straw: The criticism is well
made, in my opinion. We have acted within the Department very
swiftly on a series of adverse reports about the financial controls,
or inadequacy of the financial controls, of the Legal Services
Commission, and other failings, I am afraid. The difficulty that
the Department—
Q117 Mr Heath: I am sorry; I am not
trying to interrupt you. Could you just expand on exactly what
the concerns are and how they have been evidenced?
Mr Straw: Quite a number of these
concerns have been brought out in NAO reports and other reports,
which are now public. For example, I think it was last year, the
NAO drew attention to the fact that about £20 million had
been overpaid to suppliers—to lawyers—without proper
checking, and there are other examples of inadequate, as I say,
financial controls, which are serious—and I make no bones
about that. You asked me about whether this suggested there had
been a lack of oversight by my Department. The answer to that
is I do not believe so. The difficulty is about the structure
of the legislation, which goes back to the 1999 Access to Justice
Act, when an arm's-length non-departmental public body was established.
I have to say (it was done under the Government of which I am
a member), I have never been a fan of arm's-length quangos because
you end up with the responsibility but not the proper power or
control over what is an important aspect of public administration.
There are separate arguments where they are operating on a quasi
judicial basis, but this is not the case here. The legal and statutory
responsibility for the good administration of the legal aid system
is, fairly and squarely, on the shoulders of the Commissioners
and then, through the Commissioners, on the Chief Executive. I
think, Mr Heath, you may have noticed that Carolyn Regan, who
was the Chief Executive, has now left, and she has been replaced,
certainly for the next year, by an extremely good Director General
from the Ministry of Justice, Carolyn Downs, who has already gone
in there. I think we can anticipate some changes.
Q118 Mr Heath: Hang on a minute.
If this is going to happen now and it is going to make such a
difference and it is going to prevent this colossal loss of public
money—and that is in advance of any change to the status
of the Legal Services Commission to an executive agency—why
could not the Department have done that years ago?
Mr Straw: The difficulty is about
the way the legislation was established and the fact that you
have an arm's-length body, and also the history. Originally, the
deal that was made in the 1940s was that the legal aid system
was run by the lawyers—by the Law Society—very much
separated from what was then the Lord Chancellor's Department.
We then had the Legal Aid Board, which was basically the Law Society—it
was dominated by lawyers—and there was a lot of resistance,
when Lord Irvine was proposing major changes in the arrangements,
to the Department having direct control. That has also led to
a culture in the Legal Services Commission, which is reflected
in their public statements, that they are somehow independent
of government. For example, there were, until recently, 60 officials
working on policy. Well, that is not their job. The issue of policy
in relation to legal aid is a matter for the Government, but it
made any changes really hard to negotiate because it was not entirely
clear to whom they were making recommendations on policy, but,
frankly, it was not to me. So it was not a satisfactory system
at all. No-one argues that at the point where a decision is being
made about whether X or Y should qualify for legal aid, that decision,
obviously, has to be made independently of ministers, because
quite a lot of legal aid is granted, for example, judicially to
review decisions of ministers. That is no different from the fact
that in the Department for Work and Pensions decisions about benefits
are made separate from Ministers. You can set up a system like
that, which preserves the autonomy of decision-makers at the point
where they are faced with an individual application, whilst at
the same time (as the Department for Work and Pensions has shown),
having much more effective controls in place. That is what we
are seeking to do.
Q119 Mr Heath: I still find it difficult
to reconcile this impotence of ministers, apparently, with the
Carter Review and everything that went with that, and the fact
that when I used to be doing the job of shadowing your Department,
appearing on platforms with ministers, who told us what the Legal
Services Commission was going to do—this, that and the other—and
this apparently very poor supervision of what they were actually
doing. Can you tell me, Lord Chancellor, what difference is it
going to make making it an executive agency? How is that going
to change things? How are you going to get that through Parliament
in the next two weeks?
Mr Straw: I am not going to get
it through Parliament in the next two weeks. Let us be clear about
that; it will require a change in primary legislation. There is
a provision in section 2 of the Administration of Justice Act
1999 which provides for the one body of the Legal Services Commission
to be turned into two. I looked at whether I could make use of
that but the truth is you cannot, so it will require legislation.
What will be the benefit? If it is an executive agency it will
be part of my Department—an integral part, just as, say,
the National Offender Management Service is an integral part of
my Department—with, therefore, very clear lines of responsibility
and accountability. I think we can anticipate substantial improvements
in financial systems, which are essential.
Q120 Chair: Is that happening now,
since you have sent in one of your own director generals in?
Mr Straw: Yes, but, as I say,
there is a still a Commission there. Although part of the problem
of competing policy units has been resolved by the LSC slimming
them down, the group administering legal aid has no business in
terms of having policy advice; it has to be something that is
done separately. If you take the vexed negotiations with the Bar
on very high-cost cases, which is still going on, which I got
involved in when I first took this job on three years ago, it
made things immensely complicated just trying to get to a clear
position on a set of proposals; you had one set of policy coming
from the LSC and another from officials in my Department. It was
not satisfactory.
Q121 Mr Heath: What is happening
to the Carter Review now? You are not going to ask Lord Carter
to do any more reviews?
Mr Straw: I have not asked him
to do any more reviews. The Carter Review (let me just say this,
in defence of the LSC) has already produced significant benefits
for the public purse and for the administration of legal aid,
because the curve was on an upward path and was anticipated to
be reaching £2.6 billion by this year, whereas in fact it
is hovering between 2 and 2.1, and that is as a result of changes
which Carter has introduced. However, there have to be other very
significant changes. One of my frustrations is getting at precisely
what is going on with this arm's-length body which has been pushing
ministers in my Department away. That would have been okay if
the Commission had themselves got a proper grip of what was going
on and had run an efficient ship, but I am afraid to say they
have not.
Q122 Alun Michael: Listening to your
evidence and accepting entirely that problems arose as a result
of leaving legal aid to lawyers alone—
Mr Straw: A quango.
Q123 Alun Michael: I am going earlier
than that—leaving it to lawyers alone as part of the history
you described, I cannot resist suggesting to you that it would
be rather a good idea to review the decision to more or less leave
the Sentencing Council to lawyers. Is that something that you
might look at in the future?
Mr Straw: I do not anticipate
looking at that for a very long time. So far as the Sentencing
Council is concerned, what has been agreed by Parliament is that
the Sentencing Council shall have a bare majority of the judiciary,
essentially, on it (I think it is 8:7 or, including the Lord Chief,
9:7). The reason why the judiciary, as it were, has the trump
card is because of the interaction between the Sentencing Council
and the Court of Appeal Criminal Division. We looked at arrangements
elsewhere, including those which had been identified by Lord Carter,
where some of the equivalents of sentencing councils did not have
a judicial majority, but I felt (and I, obviously, talked to the
senior judiciary about this) that it would be inherently unsatisfactory
to have a situation where the Sentencing Council by majority could
be going in one direction and the Court of Appeal Criminal Division
(who after all make the final decisions about sentencing policy
within the framework set by Parliament) were going in a different
direction.
Q124 Alun Michael: I will leave that
line of questioning but with a question mark hanging over it.
You made a statement at the beginning of this week about the case
of Jon Venables. I do not want to pursue that case particularly—not
least because of the danger that difficult cases lead to bad law,
and while there is a genuine public interest you dealt with that
in your statement and the responses you gave on Monday—but
there is a general issue, is there not, about the change in the
way that cases are discussed in the public domain long before
they come to court? In the age of 24/7 news and a great deal of
blogging, there is a lot of comment. In the days when I reported
on courts as a young journalist, the limits were very, very clear
and absolute on what discussion there could be in the media. I
remember a senior journalist saying just recently that he had
been urged by his news editor to write a report purely on a comment
that was in one blog, with no substantial reinforcement. So there
is, if you like, an unhealthy link between what is going on in
blogging and social networking sites, and so on, with newspapers.
Is there not a need in that context to review the protections
that are there, and which you spoke about earlier this week, in
order to make sure that the processes of justice are protected?
Mr Straw: Mr Michael, there is
first the problem of the internet and the fact that this is inherently
less susceptible to regulation than any other system of communication.
That goes well beyond the criminal justice system. The main ISP
providers and operators like Facebook are, I think, becoming sensitised
to their wider social responsibilities, as well they might. I
saw Facebook and Ofcom representatives with victims' representatives
very recently, following the disclosure that some prisoners (either
directly or, more usually, by using agents outside prisons) were
setting up Facebook sites, and these were open sites, which were
deeply offensive to the victims. We have now got in place a much
better protocol with Facebook, and with encouragement from Ofcom,
than was there before, but it is a constant problem. There has
been another case in the news this week about a sex offender.
On the issue of reporting, the reporting restrictions once a charge
has been laid have probably got stronger than they were when you
were a cub reporter. The truth about the British media is that
they will test the boundaries of restrictions but where they know
what the boundaries are they, on the whole, do not go beyond them.
If we think about the great growth, quite rightly, in decisions
by judges to impose restrictions on the identity of witnesses
being disclosed (in some cases having total reporting restrictions),
they are more extensive—there were 28,000 orders for witness
protection given in the Crown Courts last year—and, on the
whole, they work. The principal difficulty that arises is in the
period preceding any charge, which is much less the subject of
regulation. Ultimately, it has to be a matter for the courts to
make judgments there, and I think it is a matter of public record
that last Friday the Director of Public Prosecutions sought an
injunction against the media to prevent further extensive reporting
of the Venables case, but in the event the learned judge decided
not to grant that injunction.
Q125 Mr Turner: How many people are
kept anonymous or have a change in name imposed by the courts?
Mr Straw: From recollection, Mr
Turner, it is four.
Q126 Mr Turner: How much is it found
to be the best for, first of all, the individual and, secondly,
the population as a whole?
Mr Straw: On the first question,
I will ask one of my officials to go out and check this because
it is quite an important number, but I am pretty certain, when
we were discussing the Venables case earlier, that there have
only been, including Venables and Thompson, four cases where complete
anonymity for life had been granted to prisoners, with a change
of identity. You will understand that is, obviously, different
from the fact that witnesses in cases, and defendants until the
point of conviction, are granted anonymity. I think your second
question was, as it were, how far has this turned out to be in
the public interest.
Q127 Mr Turner: Yes.
Mr Straw: I do not believe any
study has been done on that and there may be a case for doing
a study. Obviously, there are a lot of questions about the period
that Jon Venables has already spent in the community since he
left prison, and I made clear to the House when I answered the
urgent question on Monday that if a charge were to follow then
a serious further offence review would be established, as is mandatory,
and that will obviously look at aspects of this. Chairman, now
that Mr Turner has raised this, I will obtain what further information
I can about these cases and I can write to you, if that would
be helpful.
Chair: That will be very helpful.
Q128 Mr Turner: What has happened
is the same as happened with the support for Sarah's Law. We have
changed from a position where the Sarah's Law proposals, as it
were, were not acceptable to the point where they are acceptable.
What is your feeling on this; that the individual and the population
would be better if they found out about these hidden people?
Mr Straw: As I have said repeatedly
during the course of the last ten days, my overriding instinct,
always, is to provide the maximum public information because,
first of all, the public have a right to know, in principle, and,
secondly, if you do not it fuels all kinds of suspicions by the
public and, of course, it is not then possible to explain there
has not been a gratuitous cover-up but there are good reasons
for what you are doing. That said, I think we have to anticipate
that there can be circumstances—very, very rare indeed—where
it will be judged that the physical safety, maybe the life, of
someone who is being released from prison can only be preserved
if they are given a fresh identity. We do not have capital punishment
in this country, and we have never had rule by lynch mob, even
when we did have capital punishment, so you cannot have a circumstance
where there is a high risk that when someone is released from
prison, having served their time for however grave an offence,
if and when they are released, that they face a serious prospect
of being maimed or killed. That would be unconscionable. That
is the balance here.
Q129 Chair: In the particular circumstances
where somebody is returned to the criminal justice system and,
maybe, faces a charge, given that the risk of identification,
and all the circumstances my colleagues have described, with the
internet and the extent to which journalists in court will be
looking out for someone who might fit the description, is not
the risk now so high that we probably have to deal with the consequences
of possible identification rather than relying on being able to
preserve anonymity, and that actually what we need to do is to
ensure that robust trials can take place even when knowledge of
this kind might come to the attention of the judge and the jury,
because if we cannot do that then we may be at risk from being
unable to prevent identification?
Mr Straw: It is fair to say that,
notwithstanding the extensive coverage of the Venables case, the
injunction has held. So his current identification has not been
compromised.
Q130 Chair: However, looking more
generally at the system.
Mr Straw: The inherent issue,
Chairman, as you are aware, and as I spelt out in the House on
Monday here, is how do you protect the integrity of the criminal
justice process and how do you minimise the risk that by advance
official disclosure of material there could be a successful application
for any criminal justice process to be aborted on the grounds
that the publicity amounted to an abuse of process? As long as
we have a jury system, and long may we have a jury system, there
is a greater need for care about what information is put in the
public domain than in other systems where trials are run on a
judge-only basis.
Q131 Chair: Perhaps we have to have
more faith in juries as well.
Mr Straw: That may be so. That
is a matter which, I think, requires both research and reflection
by the judiciary about whether juries can be, as it were, "trusted"
to put out of their mind information which they picked up in any
case. However, that said—and I have not served on a jury
and there may be colleagues here who have—if you were on
a jury and you had found out that the particular person in the
dock, number one, was not who he said he was, and, number two,
he had a string of serious previous offences, it is hard to see
how you could wholly remove that from your decision-making process
about whether or not that particular person was guilty or innocent
of the crime charged, bearing in mind that there is now provision
for character, for previous convictions, to be brought in where
the trial judge is of the view that the interests of justice would
be served by it (I paraphrase the legislation). I think we have
to be very careful here, but I certainly think we should be open
to both more research and more consideration.
Q132 Chair: There is probably a number
on that piece of paper.
Mr Straw: Yes, it is four offenders
who have been given new identities, as I said.
Q133 Mr Hogg: Before I come to the
question, Mr Straw, might I just reinforce your caution about
disclosing identities of people with serious offences? I have
in mind, actually, Sarah's Law. I did a case three or four years
ago where my client was charged with the murder of an alleged
paedophile. That person was living near Hull and he was burnt
out of his house and, in fact, murdered because he was an alleged
paedophile. As it happens, he was not a paedophile, they got the
wrong person, but it does just make the point of how careful one
should be about disclosing the names of individuals. That is actually
not the point I wanted to make, but I just wanted to reinforce
your caution because I feel very strongly about it, having dealt
with that specific case and being well aware of somebody who died
because they thought he was a criminal of the kind I have mentioned.
Leaving that aside, I am very concerned about sentencing. You
will have heard the report from the Public Accounts Committee
last night about short sentences. By 2014 the Ministry of Justice
is planning, I think, 96,000 prison places. When I was Prisons
Minister at the end of the 1980s it was 40,000. This is a huge,
huge increase. Might I suggest to you that, in part, the Government
is responsible for that? I am leaving aside now indeterminate
sentences (of which I disapprove but that is by the way). We have
just finished the Crime and Security Bill, for which you had partial
responsibility. If we look at, for example, wheel-clamping as
an offence, there the Bill provided for, on summary conviction,
12 months and, on conviction on indictment, a maximum of five
years. It seems to me that the problem that government is reinforcing
is by provision of a sentence of imprisonment attached to almost
every offence. This sends a completely wrong message to the courts,
because they look at the legislation and they find across the
whole waterfront sentences of imprisonment being prescribed as
possibilities in respect of almost every offence you can contemplate.
This is nonsense. Surely we have got, as a statutory exercise,
both to cut away hugely the offences which attract prison sentences
and, also, reducing the maximum wherever possible?
Mr Straw: Mr Hogg, I am sorry
to disagree with you but I do. You are a man of expertise and,
also, singular opinions, but I do not anticipate that your opinions
on this would be widely shared by colleagues, indeed, on either
side of the House—not least in your own party.
Q134 Mr Hogg: On which bit of it
are you suggesting that I would not have general support?
Mr Straw: The burden of what you
were saying.
Q135 Chair: This entire Committee
has pointed out that we are going to have to rethink prison policy.
Mr Straw: It is the duty of anybody
in my position to provide the prison places which the courts require,
and that is what is happening. At the same time, and at the risk
of being accused of flattery, I think the work that, Chairman,
you and your colleagues did on the Committee on justice reinvestment
is very important. Although I do not agree there should be a cap
on the prison population what your Committee has been saying and
what we have been trying to do is along the same lines. I have
no interest in seeing people unnecessarily incarcerated. We have
got these seven really important pilots on intensive alternatives
to custody, and they are being evaluated at the moment, and it
looks as though they are being more successful at turning these
persistent offenders away from crime than is a series of short-term
prison sentences. However, you have to have public confidence
here. I do not what the precise connection is between the increase
in the prison population and the fact that from 1995 crime has
come down pretty dramatically, but I am damned sure there is a
connection, and I am clear the public think there is a connection
too, and so do sentencers. On the issue of should wheel-clamping
be an imprisonable offence—
Q136 Mr Hogg: It is just an illustration.
I do not want to argue too much about wheel-clamping.
Mr Straw: The truth is, for all
this nonsense about this Government has created X-thousand offences,
we have created X-thousand offences, where this has happened,
in response to public demand. When I write to Liberal spokesmen
to say: "Which of these offences, give me ten that you would
now abandon" they find it very hard to give further and better
particulars. The other key truth is if you look at the NAO report,
which I have here, the overwhelming majority of these offenders
and of all offenders in prison are there for standard offences
of theft, burglary, robbery and various offences of violence,
and the numbers who ever get jailed for the specific statutory
offences is tiny. So you could undertake the exercise you suggest
but I am not sure it would be worth the time, to be honest. In
fact, talking about time I am going to have to go in a short while.
Q137 Alun Michael: The key findings
of our report on Justice Reinvestment—indeed our report
on the role of the prison officer—brought, to my mind, down
to the fact that the provision of prison places is, in one sense,
a detail, so is the work of the courts and so is the work of the
police; the overall purpose is the reduction of re-offending,
in which context the NAO report is particularly interesting. Is
there not a need to clarify the purpose of the criminal justice
system as a whole and, therefore, the individual parts of it in
terms of contributing to that purpose? In that context, does not
the NAO report and our two reports that I have just referred to,
give a real opportunity and some direction to the need to reassess
the purpose of the whole system?
Mr Straw: I think, Mr Michael,
the overall conceptual purpose is pretty clear, and it is also
spelt out—
Q138 Alun Michael: Is it?
Mr Straw: I think so. It is spelt
out in the Criminal Justice Act 2003 as well—there are five
purposes of sentencing spelt out there. Why do you have a criminal
justice system? At the risk of repetition, you have it there to
mete out justice; it is a fundamental element in the structure
of a civilised society that people do not resort to violence themselves
when they are faced with wrong-doing; that there is a proper system
of justice.
Q139 Alun Michael: Indeed, and all
those things are part of the considerations and the balance that
has to be there. Can I suggest to you that the way, for instance—and
you were responsible for the decision at the time—the youth
justice system was established and the youth offending teams were
established, with the very clear purpose of reducing re-offending,
actually led to a reduction in re-offending, which is in the interests
of victims and everybody else?
Mr Straw: And it is working. We
have now got fewer first-time entrants going into the criminal
justice system. We have a better record on re-offending, and that
is now reflected in the fact that there are some hundreds of spare
places in young offenders' institutions. Not as a result of government
policy, I may say, because places are there, but as a consequence
of an overall government strategy, backed by the public, to reduce
re-offending, and we are now able to use—
Q140 Alun Michael: I am suggesting
to you, Mr Straw, that that lesson should be applied to the criminal
justice system more generally and, particularly, to the Prison
Service.
Mr Straw: Of course I agree with
that. Can I also just say, both to you, Mr Michael, and you were
more responsible for the youth justice reforms than I was, just
as a matter of record, and to Mr Hogg, that since I have an interest
in seeing a reduction in the number of short-term offenders going
into prison, that is actually what has happened, as Figure 1 in
the NAO report shows. It was 64,000 when I was Home Secretary;
it rose to 70,000 and it is now back to only just above 60,000.
That is the total number of short-term prisoners going in and
out of the system in any one year. The reason the prison population
has increased, principally, is because more serious offenders
are being locked up and they are being locked up for longer, including
through the very good IPP sentence.
Q141 Chair: We did promise to release
you from incarceration at around 11.15. I think this Committee's
views, strongly expressed in several reports, is that the purpose
of the criminal justice system, and all the money that is spent
on it, is to stop people having to suffer from crime. If that
were kept clearly in view we would all benefit.
Mr Straw: For the sake of completeness,
I said there were four offenders who had been given new identities,
and I can, because I have checked, give the names of those four.
They are: Maxine Carr, Mary Bell, Jon Venables and Robert Thompson.
Chair: All the cases that we know about,
yes. Thank you very much, Lord Chancellor.
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