Current criminal justice policy and the legacy of coalition

Richard Garside
Monday, 30 November 2015

This is the text of the speech our Director Richard Garside gave at the University of Kent on current developments in criminal justice and the legacy of the coalition.

I’m going to cover two areas in my talk this evening.

First, the criminal justice legacy left by the former coalition government. Being clear about where we have come from is important for understanding current policy agendas.

Second, the Conservative government’s current criminal justice policy agenda. Though we are in the early days of the current parliament, some key themes and priorities have started to emerge.

Before turning to the legacy of the coalition, some general remarks about criminal justice across the United Kingdom.

The UK has three criminal justice jurisdictions: the combined jurisdiction of England and Wales, and the separate jurisdictions of Scotland and of Northern Ireland. The Home Secretary and Justice Secretary in the UK government are, with a few important exceptions, responsible only for criminal justice in England and Wales. Criminal justice in Scotland has for some years been a devolved matter. In Northern Ireland it has been devolved since 2010.

Across the UK, opinion is divided on whether Scotland and Northern Ireland are, or should, be foreign countries. They certainly do things differently there when it comes to criminal justice.

There has, for instance, been much debate about Police and Crime Commissioners across the 41 English and Welsh forces outside London. This is a development distinctive to England and Wales.

Scotland has a single force – Police Scotland – which, incidentally, covers one third of the entire territory of the United Kingdom. It is overseen by an appointed body – the Scottish Police Authority – rather than a Police and Crime Commissioner. The Scottish Police Authority is accountable to the Scottish Justice Secretary.

Northern Ireland likewise has a single police force, overseen by the Northern Ireland Policing Board, which is comprised of representatives of the Northern Ireland political parties and non-party political appointees. So there is a broad representation, from a former IRA volunteer to staunch unionists, collectively deciding on policing priorities.

Criminal justice developments in Scotland have been strongly influenced by the dynamic unleashed by devolution, particularly since the establishment of a Scottish National Party government in 2007. Since then, the Scottish government in Edinburgh has sought to assert itself over the historically powerful Scottish local authorities: the historic base of the Labour Party in Scotland. The single Scottish force is a good example of where the national government has prevailed over the local authorities. It was the local authorities that formerly had responsibility for policing in Scotland. Now that responsibility rests with the Scottish government.

Criminal justice developments in Northern Ireland are over-determined by the long shadow cast by the civil conflict. The policing arrangements are an attempt to move on from the past by giving all sides in the conflict a stake in the way Northern Ireland is policed. This is true of criminal justice policy-making in Northern Ireland more generally. But the settlement remains unstable and unpredictable. A couple of years ago, for instance, the Northern Ireland First Minister, Peter Robinson, threatened to resign, ostensibly over the design of the crest of the Northern Ireland Prison Service. Such a gesture, extraordinary were it to be made by the British Prime Minister or Justice Secretary, reflects the historic role of the Northern Ireland justice system in sustaining the unionist state and the challenge of making a transition to a more inclusive justice system that has the support of all sections of Northern Ireland society.

If you are interested in these divergent developments, our annual UK Justice Policy Review reports – downloadable from our website – cover them in more detail. You also have summary copies of our assessment of criminal justice developments across the UK between 2010 and 2015: The coalition years. The full report is also free to download from our website.

The point I want to take from these brief remarks about Scotland and Northern Ireland – apart from the obvious point that criminal justice developments need to be understood in their local context – is that criminal justice policy-making is, at heart, a political project.

By this I don’t mean that criminal justice is the object of party-political dispute, or that ministers and civil servants are driven by a desire to appease the tabloid media or misplaced public anxieties, though both might be true. What I mean by describing it as a political project is this: criminal justice policy-making is a product of governing priorities, philosophies, ideologies and imperatives, rather than of short-term positioning (appealing to the tabloid media for instance) or a pragmatic drive to, say, fight crime or reform offenders.

In Scotland, criminal justice policy-making over recent years has been intimately connected with the nation-building ambitions of the Scottish government. In Northern Ireland, criminal justice reforms have been a crucial element of a programme of government aimed at fostering an inclusive, plural, post-conflict society.

In England and Wales – which I am going to focus on this evening – criminal justice policy-making under the coalition government formed part of a wider political project to introduce, and deepen market mechanisms and local commissioning models as a means of delivering public services. This was distinctive to England and Wales and has been continued by the current Conservative government.

So let’s turn to the legacy of the coalition government.

1. The legacy of coalition government

I am going to talk about three areas of criminal justice policy-making under the coalition: the police, probation and prisons. But before doing so, a few observations about the most significant coalition government policy, and one that has nothing directly to do with criminal justice at all. This is the economic policy we have learned to called ‘austerity’.

The coalition government described deficit reduction – closing the gap between higher government spending and lower government income – as ‘the most urgent issue facing Britain’. Its chosen approach – ‘austerity’ – involved reducing government spending, and doing so quickly.

By the time of the 2015 General Election, the coalition government had failed to meet its deficit reduction targets. It had, though, had some success in imposing the public spending cuts it claimed were necessary to achieve deficit reduction.

In relation to criminal justice, the change was dramatic. Across the United Kingdom, spending on criminal justice had grown by around 17 per cent in the four years to 2010. In the four years to 2014 it fell, by around 12 per cent. In England and Wales, Home Office and Ministry of Justice budgets fell by 19 per cent and 29 per cent respectively between 2010 and 2015.

Criminal justice policy-making under the coalition therefore unfolded against a very different financial background to the years of relative plenty under Labour. Austerity economics created the dull compulsion to cut and trim, within which a number of organisational restructurings and policy innovations became thinkable and justifiable.

So to recapitulate on the two themes I’ve introduced here:

  1. The coalition government placed austerity economics at the heart of its programme for government. This placed massive pressures on, among others departments, the Home Office and the Ministry of Justice to cut spending.
  2. The coalition had a political project to introduce and deepen market mechanisms and promote local commissioning models as a means of delivering public services, including criminal justice.

This combination of austerity economics and a market-driven public sector reforms had a big impact on criminal justice policies under the coalition.

Let’s look at three areas of criminal justice – the police, probation and prisons – to see what happened. I should add that I am here narrowing my focus on some particular themes, the better to draw out their significance, rather than offering a comprehensive account of the many detailed criminal justice policy developments under the coalition government. If you are interested in that greater detail, the UK Justice Policy Review annual reports are the place to go.

The creation of elected Police and Crime Commissioners in the 41 police forces outside London has been the most well-known policing development in England and Wales. The role of PCCs in setting local police and crime objectives in their force area and holding the Chief Constable to account has been much discussed. Here I want to draw out the implications of the Commissioner part of their job title: ‘commissioner’ in the sense of purchaser of services.

The coalition government championed the role of localised commissioning in its White Paper of July 2011, entitled Open Public Services. The White Paper stated that commissioning should be decentralised ‘to the lowest appropriate level’, such as community groups, neighbourhood councils, or, and I quote from the White Paper, ‘local authorities and other elected bodies such as Police and Crime Commissioners’.

Police and Crime Commissioners now commission local victims services and have started moving into youth justice, among other areas. This extension of market mechanisms to the delivery of police-related services, via locally-based commissioners, is, in my view, the distinctive innovation of the Police and Crime Commissioner model.

The Police and Crime Commissioner structure has made the imposition of austerity easier. For one thing, the argument is that local commissioners, aware of the distinctive needs of local populations, are more likely to spend money in a cost-effective manner than would a seemingly remote Whitehall department. There are reasons for thinking that this is not always going to be the case, and I come back to that in a while.

In addition, by outsourcing spending decisions to the Police and Crime Commissioners, the Home Office could concentrate on setting the overall budget settlement, insulating the Home Secretary from getting drawn into politically toxic arguments over individual force spending decisions. We saw a good example of this last December. The Lincolnshire Police and Crime Commissioner and Chief Constable both wrote to the Home Secretary, warning her that the force was facing a financial crisis and needed more money. In response, Theresa May told them there was no more money from the Home Office. How the force budget was spent was up to them, not her, she added for good measure.

I turn now to probation. The coalition government privatised the majority of the probation service in England and Wales. Twenty one community rehabilitation companies, dominated by private sector organisations, now deliver the bulk of probation work. A rump public sector organisation – the National Probation Service – retains responsibility for those interventions that are difficult to price in the market. This includes supervision of so-called ‘high risk’ clients. These individuals are unattractive to private companies because their supervision is complex and open-ended, and thus difficult to cost.

The coalition had two goes at privatising probation. Its first attempt, when Ken Clarke was Justice Secretary, envisaged a lead role for the 35 Probation Trusts to commission probation services at a local level. This was in keeping with the coalition’s vision of the local commissioning of public services, not unlike the Police and Crime Commissioner model. This approach did not so much end in failure as never really get started.

Its second attempt, under Chris Grayling, has been successful, at least on its own terms. But it is a very different model. The 21 community rehabilitation companies deliver probation interventions under central contracts with the Ministry of Justice. Ken Clarke’s original vision of a diverse network of local probation marketplaces has been supplanted by a monolithic, centralised market in which a single buyer – the Ministry of Justice – contracts with a small number of providers.

So having started with one model to deliver austerity and restructuring, the coalition government ended up with a different model: a centrally commissioned privatisation. This is one of the best examples of the coalition making a strategic adjustment of course: ditching its local commissioning ideology to serve the higher ideologies of privatisation and austerity.

What about prisons? By 2010 in England and Wales, the market in private prisons was well-established, though dominated by a handful of multinational companies that had significant scope to set monopoly prices. The coalition government sought to achieve a greater diversity of suppliers by encouraging new market entrants, notably through the launch of a new privatisation programme, with the aim of driving down the market price.

The programme failed. Of the nine prisons subject to market-testing in 2011, eight were under public sector management and one under private sector management. After a process that lasted over two years and cost millions of pounds, the final tally was as follows: eight prisons under public sector management; one prison under private sector management. So no change.

The lesson the coalition took from this failure was that the prisons marketplace needed restructuring. The new approach – which involved benchmarking public sector prison costs against the lowest costs prevailing in the private prison sector – has introduced new competitive pressures into public sector prisons that, in the longer-term, have the potential to create new market opportunities.

In the short-term, the coalition split off ancillary activities, such as building and estate management, from the core custodial functions. Building and estate management has since been privatised, while the custodial function largely remains in the public sector. This move from ‘vertical’ to ‘horizontal’ commissioning – from market-testing individual prisons to developing a market in whole service categories – has created a much greater range of opportunities for private sector involvement.

In summary, the coalition government pushed through major changes to criminal justice:

  • A new governance model for police and a complete reorganisation of probation.
  • A rethought approach to the prisons market, opening fresh possibilities for greater diversification looking ahead.
  • A general approach to opening up criminal justice service provision to competitive market pressures.
  • Much reduced budgets, resulting in significant downward pressures, particularly on staffing costs.

2. The Conservative government’s policy agenda

Six months into the new government, the general coordinates of criminal justice policy-making are becoming clear. There remains much detail to come.

There is some clear continuity with policies pursued by the outgoing coalition government. Given the strongly Conservative hue of the coalition government’s criminal justice policies, this is rather unsurprising. Thus, among the pledges in the Conservative Party’s General Election manifesto were:

  • The further development of the role of Police and Crime Commissioners, including giving them oversight of fire and rescue services.
  • An ongoing preference for payment by results models in the commissioning of criminal justice services.
  • Revisiting a stalled policy from the coalition period: the closure of older, smaller prisons, to be replaced by new-build, larger institutions.
  • Continuing with another stalled policy under the coalition: the introduction of new satellite tagging technology to monitor those under community sentence.

On this last point, replacement of people with technology – through, for instance, digitisation in courts; prison-court video-conferencing; enhancing cyber-security and investigation capacity; and greater use of biometrics – is going to be a big theme for this government.

An ongoing commitment to austerity economics and market mechanisms and local commissioning for public service delivery have also been carried over from the coalition government.

On the first of these, and as last week’s spending review made clear, there are going to be further cuts in Home Office and Ministry of Justice budgets. The government is going to try to offset the effects of these cuts in relation to the policing budget. The Chancellor has announced that the police budget will be protected until 2019-2020. He also announced that Police and Crime Commissioners would have greater scope to raise the local police precept: the contribution made by Council Tax payers. So the general trend towards encouraging the growth in local sources of police expenditure is set to continue.

On the second of these, the deepening of market mechanisms in public service delivery was a major theme of a speech by David Cameron in September: ‘State monopolies should be broken’, he said, ‘and new providers with great ideas should be welcomed in. Those providers should be paid by the results they achieve’. Mr Cameron also signalled a further shift towards local commissioning and decision-making over spending. This is because, he explained in a clunky, ungrammatical phrase: ‘It is... a proven reality that money spent closer to people is often money spent wiser’.

This concern with market mechanisms and local commissioning is the background to the review of youth justice, announced the same day as Mr Cameron’s speech by the Justice Secretary Michael Gove. The review is due to report next summer and could result in the abolition of the Youth Justice Board: something the coalition government tried, but failed to do. In its place we could see a greater role for Police and Crime Commissioners. West Mercia youth offending service, for instance, is due to be transferred from the County Council to the Police and Crime Commissioner next April. There are also signs that the government is considering a possible reorganisation of youth justice along the lines of the probation privatisation reforms the coalition government implemented.

Another review to watch is that of prison education, also announced by Michael Gove in September. Due to report next spring, it is likely to recommend a greater role for individual governors to commission education services, no doubt, as the Prime Minister would put it, because ‘money spent closer... is... money spent wiser’.

An air of cautious optimism has attended Michael Gove's appointment as Justice Secretary, which is in no small part down to his predecessor. Chris Grayling was, by some distance, the worst Justice Secretary the country has ever had. And while his successor Mr Gove is an ideologue, Mr Grayling was a barbarian. Better an ideologue than a barbarian.

Under the coalition government, prison policy stagnated, something that looks set to change under this government. On the plus side, Michael Gove appears to understand that there is much wrong with the current prison system.

In his Conservative Party conference speech in September Mr Gove said that prisons were the 'biggest failure' in the criminal justice process. They failed to rehabilitate those caught behind their walls, and created a perpetual revolving door of release and reconviction.

The Conservatives should take a 'reforming zeal into the dark corners of our prisons', he argued. So a modicum of fresh air has been wafting over the fetid swamp that prisons became under Mr Gove's predecessor, Chris Grayling.

On the other hand, it is clear that plans to build nine new prisons and to demolish a number of the older Victorian prisons is a plan for prisons growth. This is in fact a rather old policy idea – the former Labour government tried, and failed, to do it in the late 1990s, as did the coalition government more recently.

The complex land ownership and listed building status of some of the older prisons has been one of the reasons the policy has been difficult to implement. Dartmoor prison – which is so old it predates the Victorian period –  sits on land owned by the Prince of Wales. Reading prison, where Oscar Wilde was imprisoned, is a listed building which partly straddles an ancient monument and contains a graveyard.

So the announcement that Holloway Prison in North London will be the first of the prisons to be demolished is interesting, not least of all because it is not a Victorian prison at all. It was built in the 1970s. It does, though, sit on a prime piece of Islington real estate.

On policing, the recent decision to protect the police budget might be a short-term gesture, against the background of the terrible events in Paris. But it might signal a longer-term shift towards the strengthening of the UK’s security apparatus. All the signs are there:

  • a more money for the security services
  • a revival of the so-called ‘snoopers charter’
  • an ongoing investment in new technologies of surveillance

This shift was implied by the Home Secretary in an important speech she gave earlier this month.

‘We... face a multi-faceted terror threat: at home, overseas, and online, and the threat shows no sign of abating’, Mrs May said. She also claimed that while ‘traditional crimes’, such as burglary, car crime and theft had fallen, ‘cyber crime and fraud can create hundreds of thousands of victims with a single click of the mouse, from another country entirely.’

This was going to require a very different style of policing, and greater collaboration between the different security agencies she argued:

‘Criminals, extremists and illegal immigrants will find law enforcement using all of its tools, data and technology to disrupt, investigate and prosecute their activities.’

We are also going to see greater moves towards regional and national purchasing of police equipment, to benefit from greater economies of scale. This is another example of Mr Cameron’s ‘money spent closer... is... money spent wiser’ axiom not having a general validity.

The government’s agenda will certainly be radical in parts. It has the potential to reshape further a number of criminal justice institutions that have already undergone radical change. But it will also operate within the relatively narrow tramlines of conventional policy making and common sense, largely unevidenced, thinking. It is unlikely to offer much that is genuinely new, or transformative.

At the start of this talk I explained that the Centre for Crime and Justice Studies holds that the United Kingdom is over-reliant on policing, prosecution and punishment. That this over-reliance is socially harmful, economically wasteful, and prevents us from tackling the complex problems our society faces in a sustainable, socially just manner.

In a piece on the Centre’s website I have recently called for bold action to downsize criminal justice across the United Kingdom. While I don’t have time to go into this in any detail tonight, at the heart of my proposals are:

  • a reorganised and much reduced police force;
  • a significant reduction in the number of people we imprison, and
  • a reorganisation of public services so that the many social and personal problems currently handled as crime problems are resolved effectively by the agencies best placed to do so.

This is unlikely to be government policy any time soon. It would be the basis for a far more rational, evidenced and just set of policies than those currently being pursued.

In conclusion

The legacy of the coalition government was a criminal justice system in England and Wales much changed from that which it inherited from the outgoing Labour government. The enhancement of market-driven and local commissioning approaches towards service delivery, against the background of austerity economics, has been its main legacy.

Looking ahead, the Conservative government will build on a number of the changes wrought by the coalition. There are also emerging signs of what one of my colleagues at the Centre for Crime and Justice Studies refers to as a policed state, rather than a police state.

The United Kingdom today is not Chile under General Pinochet. We do not live in a police state, and are unlikely to do so in the future. But we are seeing signs of a renewed investment in policing structures and a new generation of technologies of surveillance, security and control. Looking back five years from now, this could be seen as the main legacy of this Conservative government.