Chris Grayling vs Ken Clarke

John Rentoul

grayling Chris Grayling vs Ken ClarkeAlso on BBC1 Sunday Politics was Chris Grayling, Secretary of State for Justice, explaining how his predecessor Kenneth Clarke is a good Conservative but got it wrong on the European Convention on Human Rights. Grayling also suggested that legal advice might be that he could not vote on the question of prisoners’ votes.


2ND December 2012


Andrew Neil: Justice Secretary welcome.

A: hello there.

AN: Your predecessor Ken Clarke was known as the sixth Liberal Democrat in the Cabinet. You probably saw him as that as well. You’re a man of the right; will differences in policy and approach now be down to personality or conviction?


A: No it’s down to conviction and I think Ken sometimes get a hard time over this because some of the things I’m doing I inherited from Ken. Ken is a Conservative, Ken takes a firm view on law and order as well, I think he sometimes got a bad press. There are things that I will certainly do differently but I don’t want people to believe somehow that Ken was doing the wrong job on criminal justice matters.

AN: Well let’s look, because Ken Clarke’s tenure, he made it pretty clear that he thought prison doesn’t work. Let’s have a look at what he said if we can get this quote. He said: ‘some people have held the belief for years, quite understandably, that in order to cut reoffending we must deter people by sending more and more to prison for longer and longer sentences. My personal opinion is that the evidence completely refutes that view. That approach does not work.’ Do you agree or disagree with that?


A: Well I agree that it’s right to send people to prison. I think the big flaw is that people come back to prison. My philosophy is best articulated by saying I want more of the right people to go to prison but I want fewer of them to come back. And the big issue I think in our criminal justice system is that we sent people to prison for relatively short periods and then we do nothing to turn their lives around, so quite literally if you get a six months sentence at the end of that sentence you will come out of the prison gate with £46 in your pocket, you’ll go back to the same streets and the same people you offended with before and all too often  you’re straight back in prison again a few weeks or months later.

AN: Are you saying this. He says that the evidence of sending more and more  to prison for longer sentences he completely refutes that. Do you agree or don’t you?


A: Well the bit that’s missing – and where he’s right – the bit that’s missing is that we’re not rehabilitating prisoners effectively. Now I think my view is that it’s better to have criminals who’ve committed serious offences in prison. There’s no doubt in my mind that if the serial burglar in the area is behind bars burglary rates will fall, but what I want to do, while that offender is in prison and when they come out, to make sure there is a real effort to turn their lives around so they don’t do it again.

AN: But will more people be going to prison? Let’s look at these projections of the prison population for England and Wales. Now it rose substantially under Labour, 76 thousand, rose up to over 85 thousand. That dotted line up there it shows what your department thinks would happen on the policies you inherited. I.e the Ken Clarke policies. The numbers fall. Will that trend be the same or will it be affected by changes you will introduce?


A: Well let’s be clear. I do not intend us to be in a position where the courts feel they have to not send to prison somebody they want to send to prison and I also do not want to see the overall number of prison places fall beyond what we inherited in 2010. These are tough times financially but I don’t want an artificial reduction in the prison population. If the work we put in to rehabilitating offenders mean that fewer people come back to prison, that’s great. Very happy with that.

AN: And that, if you get it right, would be the longer term effect. But that dotted line under you isn’t going to happen then. It’s not the continuation of Clarke. It is new broom Grayling.


A: I am not following policies that will lead to an artificial reduction in the prison population. I think every court should go for it.

AN: Do you think that has been an artificial reduction if we’d followed that?


A: Well there are different statistics

AN: These are your department statistics.


A: but there are different statistics for high level, medium level and low level estimates about the numbers  who will go to prison. My view if very simple. I’m not worried what the statistics say, I want the courts to believe that if they want to send someone to prison, they think it’s right to send someone to prison there is no lack of a place to send that person to.

AN: All right, surely it follows from your approach that there will be. That line won’t happen, there will be more prison numbers. For example, in October you talked about tough two strikes and you’re out, automatic life sentence for serious sexual or violent offences. That surely means higher prison numbers.


A: well it certain means a small number of additional prisoners going to prison for longer and I’m all in favour of that. It starts tomorrow, the offence comes into place tomorrow. What it means is somebody who commits a serious sexual offence or violent offence that would command a sentence of more than ten years or more, everyone deserves  a  second chance, if they don’t use that second chance to go to prison for the rest of their lives.

AN: They go down for a long time.


A: absolutely.

AN: All right, well let’s look at another promise that you’ve made. This was David Cameron before the election. He said we – this is about knife crime. ‘We have to send the strongest possible message, carrying a knife is completely unacceptable in Britain, end of subject.  The government should say not just there is a presumption you’ll be prosecuted if you carry a knife but there will be a presumption that you will go to jail.’ Your predecessor watered that statement down, was that a mistake?


A: Well one of the first things I’ve done is to commission new work on knife crime. We are again introducing from tomorrow a new mandatory jail sentence for aggravated knife crime, so if you’re wandering around carrying a knife in a threatening way you will go to jail. I’m also looking at issues around the cautions for knife crime which I’m not happy with at all.    Haven’t reached a conclusion yet because I’ve only been in the job a couple of months but I am looking at these issues again.

AN: Do you accept,   it’s completely unacceptable, end of subject, there will be a presumption you will go to jail. Do you accept that you have not delivered on that promise  so far?


A: Well there are certainly things that were in the Conservative Manifesto that the Coalition government’s not been able to introduce and the knife crime –

AN: Nobody stopped you doing that

A:  – element was not in the Coalition Agreement. Um, but I’m very clear that I think knife crime is a very serious issue.

AN: The Lib Dems didn’t block this, did they?


A: Well I haven’t been in there long enough to have the discussion with details proposals, but it is my intention to

AN; .. may have blocked it in the first two and half years you’ve been in power, or have you?


A: I’m not aware they blocked it but I am revisiting

AN: So that’s not an excuse.

A: I am revisiting the whole issue of knife crime now and I feel strongly that it is an offence that should be dealt with in the toughest possible way.

AN: Well let’s look because you  mention the caution. Now the official statistics, again your dept, so let’s just take the second quarter of this year, from April to June.  4,207 were arrested for carrying a blade or another similar offensive weapon. Yet of these just 951 were sent to prison.  22 were actually just let off with a caution. Now 22% were let off with a caution. Do you want me to read back the prime minister’s quote or could you explain the difference?


A: One of the first things I did on becoming Justice Secretary was to  start a further piece of work on knife crime to look at precisely this issue. My view is that if the Criminal Justice System, if the police believe that a criminal justice intervention is necessary – it doesn’t apply if  you’re caught bringing a Stanley knife back from B&Q, but if you’re found with a knife to the point where the police think that a criminal justice intervention is necessary I have profound misgivings about that being handled with a caution, and that is something we’re looking at as a matter of urgency.

AN: What do you public make of this when the prime minister says carrying a knife is completely acceptable, end of subject, there’s a presumption if you’re caught you will go to jail, pretty clear, but in fact 22% are let off with a caution. I mean that  is not what the prime minister said.


A: Well that’s why I said that I’d come to the job as intending to be a tough Justice Secretary, these are amongst the issues I have started early work on. We’re taking some early action on serious crime issues this week with the introduction of the new offences for knife crime, the new offences for serious offenders, there is a new offence being introduced for causing serious injury by dangerous  driving.  I want a criminal justice system in which people can have confidence. I will be making more changes to try and enforce that.

AN: Right. Well let’s just look at rebuilding confidence in the justice system because cautions aren’t just used for knife crime. They’re used for what – or even just carrying a knife, they’re used what people would regard as much more serious crimes. Let me just show you this, again your own department’s figures.    268 cautions for people who had sex with an under 16 year old.  390 cautions for sexual assault of a female. I mean how can you support a process in which an adult having sex with a child warrants merely a caution?


A: Well the answer is you can’t give a broad brush judgement in every circumstance.    There will be occasions where the police  need the discretion. Now if you find somebody who is 16 years and one day sleeping with their partner who is 15 years and 364 days that is technically –

AN: Minsiter these figures are all for over  18 year olds who are cutting the crime. We’ve allowed for that in these figures.  So over 18 year olds assaulting let’s say a 13 year old girl and you get a caution?


A: Now what I’m saying is that there will always be some discretion for the circumstances that actually we can’t foresee, we can’t understand, we’re not certain about what the situation is. There will always be exceptions to every rule, but my view is that cautions for serious offences should be used extremely sparingly, if at all.   And that’s why I’ve started the work on knife crime and it’s why I’m looking across the piece at the way in which the criminal justice system works, are we delivering the right deal?

AN: I understand and there are cases at the margin that have to be judged on their merit, I understand that too, but for example of the 390 cautions for sexual assault of a female many of these people were in their 20s, 30s, 40s, even 50s and yet they get a caution. Now will  you tell the British people this morning that with you as Justice Minister that will not happen?


A: What I say to the British people is that I don’t want, and I’ll do everything I can to prevent, cautions being used inappropriately where people should be brought before the courts. What I won’t do is remove all discretion from police officers to deal with offences that are at the margin cases you describe.

AN: I’ve allowed for that, minister. Those are not at the margin, are these figures too high?


A: I think we use cautions too frequently in this country, particularly in relation to knife crime. That’s why I’ve commissioned early work on it.

AN: All right. Let’s come on to prisoners voting. David Cameron said that prisoners are not getting the vote under this government, but you are going to place options before parliament, some of which would give prisoners the vote.  Which way will you vote?


A: Well we haven’t got anything to vote on yet, but let’s be clear about what the legal position is and my position is particularly different in this because I am Lord Chancellor, I’ve sworn an oath to uphold the law. The requirement upon government and government ministers is very clear. That it is our duty to implement rulings of the European Court. But the legal position for parliament is different. That – and this is advice that’s come from the Attorney General,  there was also advice under the House of Lords 12 years ago from Lord Justice Hoffman, that parliament has the right to overrule the European Court of Human Rights if it believe it wants to do so. It has to accept there may be a political consequence for doing that, but it has the right to do so. So what we’ve done is we’ve said to parliament, right, this is the legal position. We’re under an obligation to do that, you’re not. I’m going to give you three options two of which involve giving some prisoners the vote, the third of which will give you the right to exercise your sovereignty and say no to the European Court. It’s up to you to decide. And there’s going to be a process of consultation over the next few months before it reaches the point of a vote.

AN: I understand that, but are you saying that as Lord Chancellor you cannot vote for the option which is status quo no votes for prisoners?


A: Well when we come to the point of a vote I will take appropriate legal advice. My position’s very different to other Members of Parliament on this because of my role as Guardian of the Judiciary.

AN:  Could the prime minister vote no?


A: I’m the only person who’s subject to the oath to uphold the law. The prime minister is subject to the ministerial code and he is of course the arbiter of the ministerial code. He will have to decide at the time what he wants ministers to do. My position is different, but it’s a matter for parliament as a whole.

AN: I understand that too but you – what  you I think are saying is that you may be asking parliament to vote for something, ie no votes for prisoners which you cannot vote for yourself or your Cabinet colleagues cannot vote for. Is that true? Is that a possibility?


A: There is no question – I mean the prime minister’s view on this is clear. I’m on the record on my view on this.

AN: I’m asking you  how you would vote.


A: But also I have legal responsibility and you can’t be Lord Chancellor and Justice Secretary and not uphold the law. Whether you like the law or not. You can try and change the law. What I will do at the time is I’ll take appropriate legal advice about what I can and can’t do, but fundamentally this is a choice for parliament and what I’ve done is say to parliament it would be very easy simply to accept the ruling but actually the legal base is different. The legal base says, you as members of parliament,  you as parliament collectively have the right to decide yes or no to accept this ruling, I’m offering you the choice.

AN: Thank you for clarifying that.

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