Back Home? Why Sentencing, Prison and Probation Should Stay in the Ministry of Justice

The Johnson government is reportedly considering a shift in responsibility for sentencing, prisons and probation from the Ministry of Justice to the Home Office. I’m not altogether surprised; before the 2016 referendum, I heard Michael Gove tell an Oxford seminar he’d like to disband the MoJ (of which he was then Secretary of State), because it was a European type of institution unsuited to British traditions.

There may be a superficial attraction in combining responsibilities for crime and punishment -not only to those who favour a more punitive approach to offending but by those who hope that any Home Office plans for a crackdown would be tempered by the need for the Department to pay for its penal consequences.

But while the MoJ’s governance of criminal justice over the last 12 years may have earned it few friends, progressive reform is much less likely to emerge from our Interior Ministry – famously described by Whitehall- watcher Peter Hennessey as the graveyard of liberal thinking since the days of Lord Sidmouth.

For one thing, according to a book she co-authored in 2011, Priti Patel the current Home Secretary believes that we need to “reverse the tide of soft justice”, ensure that persistent offenders are imprisoned for long periods of time and make prisons “tough, unpleasant and uncomfortable places”. After the Coalition- a Conservative Agenda for Britain- written with four other current government ministers argues that “the primary purpose of our justice system is to protect our society, not to act as a welfare service for convicted criminals”. Current proposals to increase the severity of sentences may not go far enough to satisfy their desire for harder penalties.  

Not all Home Secretaries are so firmly in the Michael Howard Prison Works tradition of course, but responsibility for security and the reduction of crime will often produce penal policy which is at best risk averse and at worst unnecessarily harsh. The Ministry of Justice, whose centre of gravity includes human rights and the rule of law ought to tend to a more balanced approach to the use and practice of imprisonment. Home Secretary Theresa May's joke to Justice Secretary Kenneth Clarke., “I lock ‘em up, you let em out” says something about the departments as well as their ministers.  

     

Consolidating crime and punishment in the Home Office would raise questions about the Parole Board- increasingly a judicial body that would not sit well in Marsham Street; about Youth Justice which many think belongs in the Education department; and about the role of Police and Crime Commissioners.

Ms Patel and her colleagues argue that the role of PCCs should be extended so they are responsible for commissioning custodial and non- custodial sentences for those who are convicted.  There could be some benefits to such a devolved approach if it creates a dynamic to encourage the development of better alternatives to prison and measures to reduce -re-offending. But the government’s belief that public confidence in criminal justice will be restored by longer prison terms make these Justice Reinvestment outcomes unlikely in the current climate.

After the fall of the Berlin Wall, the new democracies of Eastern Europe who wanted to join the Council of Europe had to meet certain conditions including abolishing the death penalty and moving their prison systems to the Ministry of Justice. The latter was to encourage the "civilianisation" of highly militaristic and security focused approaches to detention. The MoJ is now responsible for prisons in all 47 countries of the Council of Europe, except Spain.

In their book, Ms Patel and her colleagues have deplored the fact that an increasing human rights agenda and increasing interference from Europe discourage prison sentences, decrying the Council of Europe’s belief that prisoners should be treated in a way that reflects the normal life of freedom that all citizens generally enjoy. 

Moving prisons to the Home Office could mean much more than an administrative change. It could be a fast and slippery slope to people going to prison not as a punishment but for a punishment.