Lawyers say that new laws are not the answer to the deportation problems.

IS THE Home Office too big? The fiasco that fatally undermined Charles Clarke has resurrected debate about whether this Whitehall empire should be broken up. Labour and Conservative MPs have called for a reorganisation of its 75,000 civil servants, and Tony Wright, chairman of the Commons Public Administration Committee, for an inquiry into its future. Meanwhile, the previous Home Secretary preferred to focus on plans for a legal presumption that foreign prisoners will automatically be deported at the end of their jail terms.

Breaking up the Home Office raises the old idea of a ministry of justice, long favoured by Justice, the law reform group. Its director, Roger Smith, says: ?It?s just too big and its range too wide. It combines too many hot political issues ? asylum, criminal justice and now you can add in terrorism.? Criminal justice (penal policy, prisons, criminal law and procedure) should join the courts as a ministry of justice, he argues ? a role that could be taken by the Department for Constitutional Affairs (DCA). The Home Office would then tackle immigration, asylum, police and terrorism.

?The Government came close to achieving a ministry of justice when the DCA was created in 2003 ? but David Blunkett allegedly blocked it,? Smith says. Critics argue that a split would mean less co-ordination between police and the courts when criminal justice agencies are trying to work better together. However, the move has long been favoured by Tony Blair.

But what of ministers? own solution? Lawyers last week were dismissive. Smith says: ?The answer is not new laws but to get right what they are already doing, rather than deflecting attention into debate on legislation. Of all the moments, this is not the one for new laws but for the Government to be humble and get on with what it should be doing.?

Other lawyers agree. David Pannick, QC, the public law silk, says: ?The problem is not an absence of relevant laws ? it?s the Home Office?s failure properly to administer the laws. New laws will not ensure that the Home Office knows where prisoners are or keeps their files in the first place.? Nor, he adds, would they make any difference to procedure. ?Under the Human Rights Act, courts must consider the circumstances of an individual before a deportation goes ahead.?

Geoffrey Bindman, the human rights lawyer, adds: ?The Home Secretary (now John Reid) already has virtually absolute power to deport any foreign citizen whose presence he believes not conducive to the public good. The circumstances of some cases may have to be looked at and people cannot be deported to a country if they would be at risk of torture, for instance. But shifting the burden of proof won?t make any difference.?

Opposition MPs, too, were scathing. Dominic Grieve, Shadow Attorney-General, says: ?It is perfectly open to the Home Secretary, using his discretionary powers, to announce that the presumption to deport will exist in every case where an offender is jailed for X number of years. A Bill won?t make the slightest difference. It?s a gimmick.?

The measure could also be a battleground between the new Home Secretary and the courts ? especially if he can finger judges for blocking deportations or not recommending them in the first place. Judges, however, will soon receive guidelines to ensure consistency of approach. Nor can the Home Secretary sidestep the courts. Grieve adds: ?Cases will still have to be looked at. The courts? jurisdiction can?t be ousted.?

As for judges, they are not going to carry the can for the latest scandal. In any case, District Judge Stephen Gerlis points out that judges do not deport ? they recommend. The decision is the Home Secretary?s. ?Judge-bashing is seen by some as an acceptable, if ill-informed, sport. I trust . . . that, in the middle of the present furore . . . it is appreciated that this one cannot be laid at the door of the judiciary.?

Perhaps after all the new Home Secretary will be forced to review his empire. As Katharine Raymond, former Home Office special adviser, recently put it: ?It has turned into a dinosaur with a brain too small to co-ordinate its gigantic body.?