As the days count down to Rachel Reeves’s feared autumn Budget, ministers across the Whitehall have been fighting hard to protect spending on their departments.
Several secretaries of state have been so unhappy with the Treasury’s proposals that they went over the Chancellor’s head to raise concerns with the Prime Minister personally.
Among them was Shabana Mahmood, the Justice Secretary, who already has a major resources problem on her hands that hit the headlines this week.
The scarcity of spaces in the country’s jails forced her to introduce that latest in a controversial series of prisoner early releases yesterday, and to launch a wider review of prison sentencing. But a tough Budget settlement for the Ministry of Justice will make things even more difficult for Ms Mahmood.
‘Squalid’, ‘filthy’ prisons cost money to maintain
Six new jails were planned by the Conservatives but only two have so far opened, with a third due for completion next year, and the scheme – which also includes increased capacity in existing jails – is using a significant chunk of the Ministry of Justice’s capital budget – costing at least £4bn so far over four years.
In light of the recent overcrowding crisis, and continued growth in the prison population, the programme looks set to continue under Labour but insiders fear that it may be funded by cuts elsewhere within the justice system.
Ex-justice secretary Robert Buckland fears spending on the physical maintenance of prisons could be seen as ‘low-hanging fruit’ for budget savings (Photo: Getty)
Tom Wheatley, president of the Prison Governors Association (PGA), says: “It’s fairly obvious that there is likely to be a real deficit between the money required to build new prisons, and maintain the existing estate.
“It means that we will find it increasingly difficult to maintain acceptable standards in our prison estate, much of which was built in Victorian times and requires money to maintain.”
If the Government does continue shovelling cash into the prison-building programme in an attempt to avoid another overcrowding crisis and keep up with the growing prison population, other forms of spending on the service could come under pressure. Staff costs, maintenance budgets and other day-to-day costs, known as “resource expenditure”, are accounted for separately to “capital expenditure” on long-term assets.
Carl Davies, PGA vice-president, said: “We’re at significant risk being an unprotected department and you can demonstrate that impact when you look back at austerity – we haven’t recovered. Capital spending was diverted into revenue, which resulted in the maintenance backlog
“We understand we’re competing against other public sector services, we’re not a Cinderella service, we’re not even that high a priority. You can see the consequences when we don’t invest, we nearly ran out of places.”
Former justice secretary Robert Buckland says that spending on the physical maintenance of courts and the prison estate could be seen as “low-hanging fruit” for budget savings, partly because justice cuts are considered less politically risky than other areas.
He assigned £156m for a prison maintenance programme in 2019, following a damning watchdog report warning of “squalid” and overcrowded living conditions, including broken windows, open toilets in shared cells, vermin and filth that “should not feature in 21st century jails”.
“These issues aren’t visible to most people,” Mr Buckland adds. “But if [the] justice [ministry] is asked to take the sort of cuts that we saw back in 2010, there’s nothing more to give. The system won’t be able to take it.
“A wise government would at the very least leave justice alone, or maybe have the sense to find some more resources to put into it.”
She also holds the historic post of Lord Chancellor, which pre-dates the creation of the Ministry of Justice by around 1,000 years, and has sworn an oath to “respect the rule of law, defend the independence of the judiciary” and, most importantly for the current negotiations, “discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible”.
With rumours of cuts swirling there is mounting concern among the judiciary and legal profession that the oath will not be fulfilled.
Court hearings already delayed until autumn 2027
There are an estimated 75,000 cases waiting to be heard in Crown Courts alone, with trials delayed for more than three years – this summer saw hearing dates being set for autumn 2027. And there is widespread consensus that the spiralling situation can only be stopped by a significant injection of funding to enable courts to run at full capacity.
The Criminal Bar Association believes that even a modest increase in funding would not be sufficient to address deep-seated issues, including mounting shortages of the barristers, solicitors and judges needed to run the justice system.
“Disregard of planning and funding for any of the interlinked cogs in the wheels of our criminal justice system, of which the criminal bar is a crucial part, has significantly contributed to the record case backlogs,” a spokesperson said.
“Those who ultimately pay the greatest price for a failure to reinvest immediately, substantially and with provisions for ongoing sustainable regular annual reinvestment, will be the ordinary people waiting for their trials to start let alone be resolved – both the defendants and victims of crime.”
If the Budget unveiled next Wednesday requires the Justice Secretary to make savings, her predecessors say they cannot see any painless ways of making them.
‘The idea that there’s anything left to cut is fanciful’
Robert Buckland, who served in the post between 2019-21, warns that there are “boulders everywhere the Lord Chancellor will look”.
“There might be a few small savings here and there but that’s not going to make much of a difference,” he tells i. “The idea that there’s anything left to cut is fanciful.”
Alex Chalk, another former Conservative MP, who was Ms Mahmood’s immediate predecessor as Justice Secretary and held the position between April 2023 and the general election, agrees.
“Cutting Ministry of Justice funding would be a total disaster and could even make Covid court backlogs irrecoverable,” he says, meaning the current record figures and years-long waits would become “baked in”.
“It would mean trials being listed ever further into the future, with victims waiting longer and longer for justice to be done.
“Justice should be a priority, and the Ministry of Justice mustn’t be treated as a Cinderella department, first in line for the chop when the Treasury wants to make savings.”
How the Ministry of Justice spends its budget
The most recently published figures show the department spent £11.5bn in 2022-23, which included: * £3.3bn on prisons (29 per cent) *£2.4bn on courts (18 per cent) *£2.4bn on policy and corporate services (18 per cent) *£1.9bn on the Legal Aid Agency (16 per cent) *£1.2bn on probation (11 per cent) *£166m on youth custody (1 per cent)
Unlike areas such as health, education and defence, the justice budget is unprotected, and it has borne the brunt of significant cuts in the past – most recently in the post-2010 period of austerity.
While each Budget is subject to intense negotiation, it is the Treasury that holds ultimate power.
‘You have to go in hard with the Treasury’
The process begins with departments being invited to send proposals to the Treasury, which responds with an initial budgetary figure, often far below that requested.
Secretaries of state then meet with the Chief Secretary to the Treasury, who is currently Bristol North West MP Darren Jones, to thrash it all out and attempt to reach agreement. Negotiations in the historical Treasury offices at Great George Street, known as “GOGGS”, can take hours, or spread over days.
“You have to be vigorous and forceful,” Mr Buckland says. “You look at the worst-case scenario and model the various figures that they want you to look at. But then you go in hard and you have a negotiation with the chief secretary.
“For example, if the Treasury says ‘We want 20 per cent savings’, you go back and you model and say, ‘Yes, we can deliver that but you won’t have a functioning prison service or court system – you’ll have to close these prisons and release this many people’, whatever it is. And then the Treasury will go, ‘Well, obviously we can’t do that’, so they come back with a smaller cut and see what you can do with that.”
How austerity hit justice last time round
Post-2010 budget restrictions and structural reforms were blamed for taking significant numbers of experienced staff out of key roles. The prison service lost 27 per cent of its officers between the beginning of austerity in 2010 and the 2014-15 financial year, a real-terms reduction of 6,600.
Recent years have seen funding increased into the system with the Ministry of Justice’s annual budget rising by over £2bn, or more than a quarter since 2018, amid programmes to recruit more prison officers, the reversal of the part-privatisation of probation, increased court sitting days and a significant prison-building programme.
But this was against a backdrop of the austerity when justice was one of the worst-hit departments. Its overall budget plunged by 25 per cent in real terms between 2010-11 and 2019-20 according to calculations by the Law Society.
If negotiations with the Chief Secretary to the Treasury go badly, ministers can choose to go over their head to the Chancellor or Prime Minister, as appears to have happened with this month’s reported letters from Ms Mahmood, and others, to Sir Keir Starmer.
A source close to the Justice Secretary played down reports of a rift, saying that ministers routinely communicate with both the Treasury and Prime Minister throughout the budget negotiations, adding: “Ministers always ask for more for their departments than the Treasury gives them.”
But Mr Buckland calls the reports “extraordinary”, adding: “It’s not really the way to negotiate with the Treasury.
“I can’t see how [the letters to the PM] help the negotiating position of the respective departments. I mean, I know the Treasury. They will see that as a weakness rather than a strength, and it’ll actually make the position of the department more difficult.”
'President Musk' is flexing his muscles and revealing how weak Trump is