The prerogative of procrastination: what has happened to the Royal Commission on criminal justice?

A P Herbert once said “a Government department appointing a royal commission is like a dog burying a bone – except that a dog does eventually return to the bone”.

He was partly right of course, and many Royal Commissions have been used as a convenient means of burying subjects too difficult for governments to handle. Conveniently, they always take years to report, so they can be a useful way of transferring difficult problems to a future government. Often their recommendations have been ignored and in some cases Commissions have even been wound up before they have had a chance to produce any report at all.

However, Royal Commissions on criminal justice matters have tended to be rather more productive, and several have been instrumental in producing real and lasting change.

The Capital Punishment Amendment Act 1868, which abolished public executions, was introduced following recommendations in the 1864 – 66 Royal Commission on capital punishment.

In more recent times, the 1978 – 81 Royal Commission on Criminal Procedure led both to the establishment of the Crown Prosecution Service and to the passing of the 1984 Police and Criminal Evidence Act, two reforms of huge significance.

The 1991 Royal Commission on Criminal Justice made a number of recommendations that were not followed, but its important proposal for the establishment of a Criminal Cases Review Commission was accepted. That too was an important legacy, despite the CCRC’s recent troubles.

The Conservative Party’s 2019 election manifesto promised

“We will establish a Royal Commission on the Criminal Justice System“:

You did not need to be in political sympathy with the incoming government to recognise a criminal justice system in crisis, and the idea of a Royal Commission was welcomed by many.

In December 2019 the proposal was contained in the Queen’s speech:

My government is committed to a fair justice system that keeps people safe. My ministers will establish a Royal Commission to review and improve the efficiency and effectiveness of the criminal justice process.”

The emphasis had narrowed somewhat from a broad focus on the whole criminal justice process into a review of its “efficiency and effectiveness,” but no matter.

Accompanying briefing notes set out how the Commission would be established:

Once the Government has drafted the Terms of Reference for the Royal Commission, Her Majesty the Queen will then be asked to approve the Commission. One she has done so it will be established by Royal Warrant.”

So, no need for legislation. All that is needed is Her Majesty’s warrant; our old friend the prerogative power. A Royal Commission might well take two years or more to report, but it should be possible to establish it very quickly.

The Covid crisis exacerbated many of the existing problems in the justice system. Waiting times for trials went from the unacceptable to the abysmal. Prisoners were – and still are – held in conditions approaching solitary confinement, or confined to their cells for 23 hours a day. Various half-baked proposals for tinkering with the system were suggested, partly for reasons of principle, mainly as temporary expedients to maintain some sort of functioning system: giving magistrates greater powers, reducing the number of jurors, allowing judge-only trials – with or without the defendant’s consent – and so on. Some of these are the sort of things that a Royal Commission might consider.

In June last year Lord Keen – the Advocate-General for Scotland (rather confusingly a law officer in the UK government) referred to the Covid crisis when he told the House of Lords:

“the criminal justice system faces challenges, which is why this Royal Commission is so important.”

Who would be sitting on it? Lord Keen was unable to be as helpful as he would have wished.

“The membership of the Commission has not yet been finally determined,” he said in reply to a question from Lady Butler-Sloss, but he was “confident that the Commission would include appropriate representation of the legal profession.”

What about the terms of reference?

Lord Keen was happy to help here too.

Clearly the Royal Commission will seek to embrace the terms of reference that are finally agreed.”

That’s certainly good to know. No-one wants a Royal Commission going rogue and trying to embrace terms of reference that have not been agreed.

In July momentum seemed to be building. The government advertised for a full-time “deputy-director secretary” to the Commission. The job was awarded to Miriam Minty, previously the rather alarmingly titled “Head of Modern Slavery” at the Home Office.

On 15th July the former Chief Inspector of Prisons, Lord Ramsbotham asked Lord Keen a question in the House of Lords:

As the Royal Commission was announced in December and many, including the Law Society, have highlighted that currently the criminal justice system is not working in an efficient or effective way, when will the Lord Chancellor seize the opportunity?”

Lord Keen’s enthusiasm seemed to have cooled just a little. He warned against undue haste. It was “critical that we determine and finalise [the] terms of reference with care,” he said. Nevertheless,

a small team of civil servants in the MoJ is working to establish the Royal Commission and it anticipated that they will transition to make up the secretariat for the Commission, which we hope to have operational from the autumn.”

That was a little ambiguous: was it just the secretariat that would become operational by the autumn, or the actual Commission? Lord Keen helpfully resolved the ambiguity in answer to a later question:

We anticipate that the Royal Commission will be able to commence its work in the autumn, having before it a finalised set of terms of reference.”

By the autumn though, whether or not the small team of civil servants had “made the transition to a secretariat,” the Royal Commission had certainly not commenced its work. It had a “deputy-director secretary,” but no director secretary, and indeed no director and no secretary and probably no secretariat, quite apart from having no Chair, no members and no terms of reference.

In November Lady Scott of Bybrook had the job of updating the House of Lords on its progress.

She was anxious that there should be no intemperate rush. Now the Covid epidemic was no longer a reason for going quickly; it had become a reason to proceed with caution:

It is important to learn lessons and use this experience when considering the remit, membership and timing of the Royal Commission in this context.”

Ah. More time for reflection needed.

But the government had not been idle. Far from it:

A budget has been allocated for the commission’s work, a team of officials has been established and work is under way on developing the terms of reference and the options for the chairs and commissioners.”

In fact the £3M budget for establishing the Commission had been announced in March 2020, the November “team of officials” does not sound very different from the July “team of civil servants” that were supposedly on the point of transforming themselves into a “secretariat”; and “developing the terms of reference” sounds a suspiciously similar process to the “determination and finalisation of the terms of reference” that was also being undertaken in July.

Lord Woolf, a former Lord Chief Justice, referred to the “acute crisis in all aspects of the justice system.” Could Lady Scott please give reassurance that the “urgently needed” Commission would start its work?

Well, no she couldn’t:

The commission is a once-in-a-generation opportunity to address the challenges in the criminal justice system … . This work is extremely important, but it is also an opportunity to factor in the real and additional challenges of Covid-19 and to look at the resilience of the system.”

Perhaps the government would be more forthcoming in the House of Commons? On 9th November Kit Malthouse, the Crime and Policing Minister, told MPs:

We are carefully considering the precise remit and timing of this Commission and will update the House in due course.”

Good to know that things were still being considered. Carefully, of course.

Since November there have been more months of government silence. It is nearly 15 months since the establishment of the Commission was announced. Apart from the appointment of a deputy-director secretary nothing seems to have happened at all since this time last year.  Of course, amongst its many prerogatives the government retains the crucial one of procrastination, but for anyone who believed the government meant what it said when it called the Royal Commission “important”, it is all rather disappointing.

Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

3 thoughts on “The prerogative of procrastination: what has happened to the Royal Commission on criminal justice?”

  1. It had a “deputy-director secretary,” but no director secretary, and indeed no director and no secretary and probably no secretariat, quite apart from having no Chair, no members and no terms of reference.

    Yes, but otherwise it was bang on track! No doubt a similar rate of progress continues apace.

  2. “Prisoners were – and still are – held in conditions approaching solitary confinement, or confined to their cells for 23 hours a day”


    They’re locked down and only allowed an hours exercise a day!!

    What are they like!!!

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