Ken Clarke: the revolution that never was

Editorial | The Guardian | 28 October 2011

It has become plain that by ducking the argument, the justice secretary is losing it

A pragmatic man in an excitable field, Ken Clarke started out determined to get a grip on Britain's remorselessly rising prison population. Between his spell at the Home Office in the early 90s and his reincarnation as justice secretary, the number expensively – and for the most part aimlessly – banged up in England and Wales had doubled to 85,000. The average annual cost of keeping each there is £41,000. With crime under control, and cash painfully tight, Mr Clarke robustly explained why the great jail-building boom must stop. But then, with some singularly ill-chosen words, he created the offensive impression that some rapes were not serious, a misstep which stirred reactionary forces on both sides of the Commons to goad David Cameron into hacking chunks out of his reforms. Ever since, the justice secretary has made his case with an uncharacteristic lack of directness. This week it has become plain that by ducking the argument, he is losing it.

The frenzy around crime often retards the policy, and there were reminders of that on Friday in the rightwing press. Labour shamelessly seized on their claims that Mr Clarke was about to set 2,500 "dangerous offenders free". This was the supposed effect of replacing David Blunkett's malfunctioning indefinite sentences with harsher definite terms, a move which will affect future and not current prisoners, and which may – if Whitehall's hazy predictions prove right – put some downward drag on the overall numbers from around 2019. In other words, the wild men supposedly about to be unleashed on the streets might be individuals who have not yet committed any crime; and their earlier freedom – or not – would depend not merely on future parole decisions, but on other policies followed by Mr Clarke and indeed his successors. This move is nonetheless to be welcomed, seeing as release from indefinite sentences is arbitrarily dependent on whether the resources to assess prisoners as fit to be freed happen to be at hand, an injustice which, as Mr Clarke says, is "a stain on the system".

But of the many questions being settled through Mr Clarke's 11th-hour amendments to his own legislation ahead of parliamentary votes next week, this is the sole point on which he has prevailed. A long-term proponent of giving judges discretion to respond to the contours of the individual case, the justice secretary was slating mandatory sentencesthat tie judicial hands as recently as Tuesday. Yet by Thursday it had emerged that he would be legislating for a presumption to imprison youths as well as adults caught wielding knives, and for mandatory life sentences, until now used exclusively for murder, to be imposed on repeat offenders of certain other crimes.

"Two strikes and you're out" is a wheeze of precisely the same stripe as Michael Howard's three-strikes policy, which Mr Clarke holds up as a case study in bad law. The fact that it has the same get-out clauses that the Lords attached to the three-strikes law may limit the direct damage – the justice secretary says it will create 20 extra lifers each year. But he is being too pragmatic for his own good here, if he imagines that is the end of the matter. The rigid mandatory term for murder has long been a problem, and it is now being extended rather than reformed: a dangerous precedent for more reactionary justice secretaries to exploit in future.

More generally, since the riots we have had another spike in prison numbers, and all the pressures are pushing the same way: from increased magistrates' sentencing powers to the new knife edicts. These things were not in the coalition agreement. They are undermining the rehabilitation revolution, and with it the serious liberal case for this government. Besides, all past experience shows that it is punitive rhetoric more than detailed policies that leads to courts getting tougher. Mr Clarke did try, but ended up settling for fudge and mudge. And that won't do the job.