Yesterday Ed Miliband and the usually equally reliable shadow Justice Secretary, Sadiq Khan, demanded that the prime minister should sack Ken Clarke, the Justice Secretary, over his remarks about rape and his proposals for changes in sentencing policy (not just in rape cases). This was an unpardonable example of cheap party point-scoring at the expense of the public interest, and a serious error of judgement on both their parts.
The charge against Clarke by such authorities on social policy as the Sun newspaper and the right-wing Tory cave-dwellers is that by acknowledging the obvious truth that some rape cases are more serious than others, he implied that some rapes are not serious at all. In fact he implied nothing of the sort, and if he initially expressed himself clumsily, he made ample amends subsequently by stressing, as anyone of sound mind must, that rape is serious in any circumstances. The proposition that all rapes are equally serious is however plainly ridiculous.
On his policy suggestions (which is all they are at this stage), Ken Clarke made it amply clear that the purpose of increasing the sentence discount for pleading guilty at the first stage of a rape charge would be to give an incentive to defendants to plead guilty and thus spare victims the added trauma of questioning and cross-examination both during the investigations and often eventually in court. Whether the increase in the discount from one-third to a half, where the guilty plea is entered at the earliest stage, is too great is a subjective matter on which decent people may legitimately disagree. But it’s clearly not an idea whose airing could possibly justify dismissing the relevant minister.
By attacking Clarke and calling for his dismissal, Sadiq Khan and Ed Miliband made several significant errors. They gave the impression that they thought Clarke had said things about rape which he had neither said nor implied. They themselves gave the impression of opposing a possible policy change, designed to spare rape victims unnecessary further trauma, without even considering its possible benefits, purely to curry favour with the most reactionary of the feral tabloids and to score points against the government. They denounced Clarke for seeking to reduce the numbers of people in prison by increasing the sentencing discount for pleading guilty, thereby strongly implying that Labour is against any reduction in the shamefully excessive prison population, and thus putting the party once again at odds with all right-minded people with a social conscience, with every authority on penal policy and with every civil rights organisation. And they accused Clarke of being motivated purely by a desire to save public money by sending fewer people to prison — as if saving public money by a patently desirable liberalisation of prison policy was a crime. This is a charge that Labour needs to abandon once and for all.
But worst of all, Messrs Miliband and Khan have failed to recognise that the best hope of long overdue penal reform in this country lies squarely in Ken Clarke remaining in office as Justice Secretary, with sufficient all-party backing to enable him to carry through the reform proposals in his Green Paper on sentencing policy issued a few months ago. These include sensible practical changes designed to reduce the numbers of people unnecessarily sent to prison and above all to bring down the present horrifically high rates of reoffending. They also include measures to reduce sharply the numbers of sentences of indefinite imprisonment — actually an indefensible system of preventive detention — and to reform the unjust, incompetent and repressive ways in which such sentences are administered. If Ken Clarke is forced out of his job, it’s almost inconceivable that his successor would have the liberal instincts and political weight to get these desperately needed reforms past the reactionaries in the Tory party and the media.
For all these reasons, the action of the leader of the opposition and the shadow justice secretary in actually increasing the pressure on Clarke to resign (or on the prime minister to sack him) was wrong on every possible count. Most of the reforms espoused by Clarke have been made urgently necessary by ill-conceived and illiberal measures for which a succession of disastrous New Labour home secretaries and a justice secretary were responsible. By seeming to oppose their reform, the Labour front bench is giving the impression that the party leadership has learned nothing from the Labour government’s dreadful record on human rights and civil liberties, and will oppose any attempt to reverse it.
It’s time now for Labour to issue a ringing endorsement of Clarke’s reform proposals and to promise the beleaguered Justice Secretary full support against the right-wing enemies of reform. Labour needs to acknowledge unambiguously that there are far too many people in prison who ought not to be there, that reoffending rates can and should be brought down and that there is no place in a decent democratic society for preventive detention. In doing so, the party would be fulfilling the explicit promise in Ed Miliband’s acceptance speech at the party conference immediately after he was elected leader. He knows, as we all do, that by returning to its historic commitment to justice, civil rights and enlightened penal policies, Labour will be accused by the Tories and probably the LibDems of doing a U-turn and admitting that Labour in government committed serious errors that now have to be put right. We all know that Labour’s former home secretaries will fight tooth and nail to defend their shoddy records and avert any implied or explicit repudiation by Labour’s new leaders of the harm they did. But we also know that when you have dug yourself into a hole, the best thing to do is to climb out of it, not to keep on digging. In this context, that’s not only the best practical course: above all, it’s the right one.
By their actions yesterday Ed Miliband and Sadiq Khan have aroused the suspicion that they are once again heading down the wrong path on penal policy and reform. If this continues, it will be a disaster for the party, and potentially also for the country and for justice. Fiat justitia, ruat caelum!
Update (20 May 2011): I have now listened carefully to the whole of the Radio 5 Live interview of Ken Clarke by Victoria Derbyshire (http://www.bbc.co.uk/podcasts/series/victoriad, victoriad_20110518-1416a.mp3) and I have to say that I found nothing remotely objectionable in anything whatever that Clarke either said or implied. The accusation that he said or even hinted that he regarded some kinds of rape as not serious is absolutely unfounded: indeed he said with emphasis at least twice that all rape is a serious crime deserving severe punishment. He drew a distinction between different kinds of rape, some aggravated by violence and lack of consent and others not, as the explanation for sentences for the crime of rape varying in severity. Anyone who professes to be offended by that must be living on another planet.