Kenneth Clarke has his work cut out over prisons

Kenneth Clarke has his work cut out over prisons

Reducing the prison population seems to be his main focus, but cost-saving measures could backfire

By Joshua Rozenberg

Justice Secretary Ken Clarke. Photograph: Matt Cardy/Getty Images

So are we going to see fewer people in our prisons now that Kenneth Clarke is back in charge of them? You would think so, after the justice secretary referred yesterday to the current prison population of 85,000 as a "quite astonishing number which I would have dismissed as an impossible and ridiculous prediction if it had been put to me as a forecast when I was at the Home Office in 1992". You would also imagine he wanted to save money from hearing him repeat his favourite comparison – that it costs more to put someone in prison for a year than it does to send a boy to Eton.

Certainly, those in Kings College London who listened to Clarke's speech at the Centre for Crime and Justice Studies had formed the impression from an extract released in advance that he wanted to reduce prisoner numbers by reducing reoffending.

But when I asked him directly how much money he would save by reducing the prison population, he explained that he had not yet received his instructions from the Treasury – before spotting that I had deliberately put an assumption into my question which had not been made explicit in his speech.

"I'm not trying to get fewer people into prison," Clarke insisted. He merely wanted custody to be cost-effective. And he pointed out that one of the ministers he'd brought with him to the lecture yesterday would be signing a contract for a new prison today.

But nobody was left in any doubt that Clarke wants to halt the increase in prisoner numbers. It would be a relatively painless way of making the savings that are required of him. And if this is how he has to sell the policy to Tory voters and backbenchers, so be it.

That was not the only promise in the first major speech he has made since returning to government. As home secretary, he had no control over sentencing. As justice secretary, he now has.

While he was refreshingly respectful of the judges – "I think it's fair to say I've got rather more confidence in judicial discretion than my predecessors" – he questioned sentencing guidelines.

How far, he mused, had they been an aid to consistent justice: "How far are they in danger of becoming an over-rigid response to the wide range of circumstances in individual cases?"

Quite how this fits in with the new, independent, Sentencing Council is far from clear. But what the justice secretary did promise was so-called minimum/maximum sentencing. Under this arrangement, a prisoner would not be eligible for release until he or she had served a minimum punishment period. The prisoner would then have to earn their release if they were to be let out before reaching the maximum term.

There is a crucial difference between these proposals and the indefinite sentence that is currently passed for "public protection". These inmates may end up serving much longer than their minimum terms if they cannot show they are safe to be released. Under Clarke's new plans, they would presumably no longer be filling the cells long after they had served the maximum appropriate punishment.

Like his predecessors, Clarke will find that there is no easy way of bringing down the cost of legal aid. Introducing more means testing will not save very much. If litigants have to represent themselves in court, hearings will take longer and miscarriages of justice will become more likely – increasing costs in other parts of the ministry's budget.

And it is certainly not a good idea to refer to individual defendants in forthcoming criminal cases – as the Lord Chancellor would have done if he or one of his aides had not deleted a passage from his draft speech at a late stage.

But a narrowly avoided brush with the law of contempt did not detract from a speech delivered with confidence and aplomb. Spending less while "doing things better" will be quite a challenge. But it certainly won't be boring.

Joshua Rozenberg is a freelance legal writer, commentator and broadcaster