I have always been surprised to see US presidential candidates conceding defeat on the strength of network predictions and a few early results – sometimes before the west coast has even finished voting. Here in the UK, though, the Conservatives all but threw in the towel long before polling day, their highest ambition being to avoid Labour winning a ‘supermajority’.
Nobody doubted that the King would invite Sir Keir Starmer KCB KC to form a Labour government on Friday. The only disappointment for the broadcasters is that they were denied their usual opportunity to track the new prime minister as he travelled through the night from some faraway seat: Starmer’s inner-London constituency extends as far south as Gray’s Inn, though he’s a bencher of Middle Temple.
What can lawyers expect when one of their own enters Downing Street? As a former prosecutor, the new prime minister is well aware that his most urgent legal challenge is prison overcrowding. This attracted surprisingly little attention during the election campaign. It was only on Tuesday that Starmer admitted to the BBC’s political editor that a Labour government would ‘in all likelihood’ need to continue the early release of prisoners.
He was referring to the Conservatives’ policy of releasing offenders up to 70 days before the mid-point of their sentence, when they would normally have been allowed out on licence. That practice was based on somewhat shaky legal foundations: it is supposed to happen only when the secretary of state is satisfied that ‘exceptional circumstances exist which justify the prisoner’s release on compassionate grounds’. Prison overcrowding has not been exceptional for many years.
Even so, the current early release scheme ‘has been exhausted in England and Wales’, Starmer was told by the Prison Governors’ Association last week. The crisis is so acute that Ministry of Justice officials have drafted emergency regulations under the Civil Contingencies Act 2004. Alex Chalk, the outgoing justice secretary, seems not to have needed them. But his successor may not be so fortunate.
She is expected to be Shabana Mahmood, 43, who was called to the bar by Gray’s Inn after taking a law degree at Oxford and was first elected to parliament in 2010. Her first challenge may be to steer new primary legislation through parliament in the next four weeks.
In their letter to party leaders, prison governors said the legislation must ‘result in sentenced prisoners being routinely released from custody at the 40% mark of their sentence’ instead of 50% as at present. ‘Without a significant reduction in the prison population now,’ the letter added, ‘the criminal justice system will fail and the public will be put at risk.’
These new arrangements would replace Chalk’s stop-gap measures. But they are no more generous to short-term prisoners. An offender sentenced to two years would normally be released after about 52 weeks. Reducing that by 70 days gives a sentence of 42 weeks. A prisoner serving 40% of a two-year sentence would now be freed after 41.6 weeks.
Mahmood has kept a low profile since Starmer appointed her as shadow justice secretary last September. She has promised that Labour will press ahead with Conservative plans to build new prisons, while being well aware that more urgent action is also needed. Discreet briefings will have been arranged for her with key legal figures. For the first time in history, a female justice secretary will be working with a lady chief justice.
The post of attorney general is expected to go to Emily Thornberry, 63. In her new role as the government’s chief legal adviser, she will have to decide whether to work behind the scenes like her predecessor Victoria Prentis or adopt the overtly political approach taken by another attorney who served during the last parliament, Suella Braverman.
Also called to the bar by Gray’s Inn, Thornberry was first elected to parliament in 2005. Her husband is Lord Justice Nugee. She has had a much higher political profile than Mahmood, standing in for Jeremy Corbyn five times at prime minister’s questions.
Decades ago, a largely conservative judiciary might have been alarmed by the prospect of an incoming Labour government. No more. Since the Conservatives came to power in 2010, there have been 10 justice secretaries, one of whom served twice. By contrast, there were just three lord chancellors between 1979 and 1997, one of whom retired after four months because of ill-health.
What the legal system needs is fresh investment, clear objectives and – above all – stability. Judges no longer have an old-style lord chancellor with sufficient seniority to argue their corner in the cabinet. They know that years of damaging cuts will not be reversed overnight. But they hope that having a KC as PM will mean, at the very least, that someone in government understands what needs to be done.
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