Prison Capacities

Lord Burnett of Maldon Excerpts

Thursday 12th September 2024 Lords Chamber

[Lord Burnett of Maldon (CB)]

My Lords, I add two points to those already made. First, there is much talk of prison capacity, but it is important to appreciate the difference between capacity in the sense of how many can be crammed in and the real capacity of our prisons. The Ministry of Justice has its own “baseline certified normal accommodation”, designed to provide decent accommodation. At the end of August, its figures suggested that it was about 8,500 over that baseline—perhaps fewer today. The adverse consequences are well understood. Its baseline, in its own words,

“represents the good, decent standard of accommodation”.

When does the ministry expect to achieve that level of decency and return to its baseline?

Secondly, overcrowded prisons risk the courts seizing up. During my final months in office as Lord Chief Justice, I received daily prison figures, broken down region by region. There was a risk that people being remanded into custody or sentenced would have nowhere to go—and, if they cannot be taken away, the work of the court is paralysed.

We have seen two interventions by the senior judiciary to delay cases that were likely to result in custody to avoid that eventuality. There are also prisoners being located far from courts in which they are appearing, resulting in transportation problems and delays in their hearings. I observed to colleagues on more than one occasion that we were only one riot away from meltdown—and so, alas, it has transpired.

Severe overcrowding in our prisons has a multiplicity of adverse consequences beyond the most obvious. There is little realistic prospect of substantially expanding prison capacity in the near term. That is, in any event, the wrong solution. The record number of those in custody must come down.

King’s Speech

Lord Burnett of Maldon Excerpts

Wednesday 8th November 2023 Lords Chamber

[Lord Burnett of Maldon (CB) (Maiden Speech)]

My Lords, I start by echoing the sentiments of other noble Lords at the sad and shocking news of the death of the noble and learned Lord, Lord Judge, a great Chief Justice and an outstanding parliamentarian.

This maiden speech has been long in coming. It is six years since I had the privilege of being introduced to your Lordships’ House, but the statutory disqualification preventing serving judges from taking part in the proceedings of the House applied to me until almost six weeks ago. In the meantime, I have visited frequently and benefited from the unfailing assistance of the doorkeepers and staff of the House of Lords. Their continued assistance and courtesy have been especially valuable during the few weeks since I left office as Lord Chief Justice. I have had the pleasure of making regular appearances before the Constitution Committee to explain the workings of the judiciary and courts and, as counsel, many outings before the Judicial Committee—so, while a newcomer, I do not feel a stranger.

All this is a far cry from my visits as a schoolboy, sitting below the Bar, fascinated by the working of Parliament. A debate on fish farming has stuck in my mind and, within minutes of my asking, the Library staff were able to find it. Reading the speeches now, I must confess to being perplexed at why they struck such a chord with a 17 year-old in 1975.

Most of those who visit this Chamber are overwhelmed by its grandeur but have little time to study the lessons in history that adorn its walls. This schoolboy failed to notice the mural painted by Charles Cope of Prince Henry—later Henry V—acknowledging the authority of Lord Chief Justice Gascoigne. Its presence in the Chamber is a powerful reminder of the importance of the rule of law. In modern terms, it illustrates the Executive’s acknowledgement that they are subject to the law.

It is also striking that the armorials of Chief Justices from William FitzOsbern in 1067 to Lord Widgery in 1980, when the space was exhausted, surround the Library at ceiling height. The symbols speak of the centrality of the rule of law to our system of government. They resonate as your Lordships debate home affairs, justice and devolution following the gracious Speech.

The core features of the rule of law are not now in doubt. They include that everybody is subject to the same laws: wealth, power, status or privilege provide no special protection. Dr Thomas Fuller observed in 1733:

“Be you never so high, the law is above you”.


Governments and public officials are subject to the law and must exercise their powers lawfully. Laws must be accessible and clear. Disputes, if incapable of consensual resolution, must be determined by independent courts and tribunals. For the rule of law to have substance, there must be an effective court system. An independent judiciary is also a central feature of the rule of law—independent individually to decide cases on the law and evidence, and independent institutionally to resist pressure from any and all powerful actors. A vibrant and independent legal profession is necessary to promote liberty under the rule of law.

There was no mention in statute of the rule of law or the independence of the judiciary until 2005, when both well-established concepts were included in the Constitutional Reform Act. The rule of law was declared a constitutional principle, with special responsibility for its sustenance attaching to the Lord Chancellor. All Ministers and officials were enjoined to uphold the continued independence of the judiciary, including the judiciary of international courts whose jurisdiction the United Kingdom recognises. The Lord Chancellor was fixed with a special duty to defend judicial independence and secure adequate funding for the courts.

As Lord Chief Justice, I was concerned that much official thinking in connection with the courts and the law failed to raise its eyes above their direct financial contribution to the economy. Of course, that contribution is vast, but it does not begin to capture the real value of the rule of law. No one would tot up the annual economic value of the education sector and consider that to be its real worth: an educated population is necessary for prosperity and much else. Nor would they suggest that the worth of the health sector is represented by its direct monetary contribution. A society whose members are healthy will be capable of flourishing; one with excessive ill health will not.

So it is with the rule of law. Without the rule of law, underpinned by an independent judiciary and the courts, much else would fail to prosper. It is one of the foundations that supports economic activity, wider prosperity and a settled society. In short, the rule of law, the courts and an independent judiciary are not optional extras or simply a service, but one of the foundations on which all else is built. As such, they must be nourished.

I am grateful for the opportunity to make these observations and I look forward to playing my part in the work of your Lordships’ House.