What now for Labour's criminal justice policy?

Richard Garside
Tuesday, 7 June 2005

Future trajectories

What I would like to do here is map out some of the main themes that in my view appear likely to inform Labour's criminal justice policy in its third term in power. For clarification I am as interested in the broader social policy themes as the narrower criminal justice and criminological ones. This is because the criminal justice system operates as an extension of, and a reinforcement of, the government's broader social policy agenda. And ultimately this broader agenda is more determinative of criminal justice policy than public opinion, political pragmatism, media-driven populism, or any other of the usual suspects blamed for the state of the law and order debate and policy.

I will divide my observations into three main areas. First, I will look at the values and beliefs that appear likely to underpin Labour's criminal justice policy. Second, I will highlight some of the main policy levers Labour is likely to use to achieve its objectives. Third, I will suggest some of the key implementation strategies Labour is likely to use.

To put on record one of my underlying assumptions, I am working on the basis that the overall policy framework of this government is likely to remain broadly the same regardless of who occupies the various posts. In other words, the government's overall policy trajectory is likely to remain broadly the same regardless of whether Tony Blair, Gordon Brown, or any other plausible successor, occupy Downing Street.

Values and beliefs

Here I will be making two main points about this government: one about an underpinning value; one about a fundamental belief.

First an underpinning value. The underpinning value is a commitment to consensual, small 'c' conservative notion of community and social order: 'respect', to use the current terminology. Take the recent comments by the new Leader of the House, Geoff Hoon, writing last week in The Guardian:

The decline in deference is on the whole to be welcomed... But one of the consequences of this is far less respect in our society - for authority and also for our traditional institutions... How depressing... to see young people swearing at police officers, or parents complaining unreasonably about teachers who have dared to discipline their child.

These remarks echo closely Tony Blair's comments in Downing Street about respect the morning after the election.

Lest we think that this is a recent preoccupation of the government, the new Clause Four of the Labour Party Constitution, adopted in 1995, commits the party to:

a community... where the rights we enjoy reflect the duties that we owe, and where we live together, freely, in the spirit of solidarity, tolerance and respect.

In its commitment to community and social order, Labour has been strongly influenced by US communitarian thinking. And like communitarianism it in principle reflects a progressive concern to foster a just and cohesive society in the context of neo-liberal economic policies that tend towards social fragmentation and atomisation.

But a commitment to community and social order also requires one to take sides against those who reject such order or step outside of the normal bonds of community. And so it is that Labour's 2005 manifesto commits the party to 'protecting the law-abiding majority from the minority who abuse the system' and to fostering 'communities where the decent law-abiding majority are in charge'. Offenders, in other words, have not just broken the criminal law. They have breached communal norms. They are deviants. Moreover, this notion of deviancy from the norm has significantly widened with the emergence of the concept of anti-social behaviour.

Now a few remarks about one of Labour's fundamental beliefs. Put bluntly, this is that the post-war welfare state was a mistake, because it fostered a culture of dependency. This does not mean that Labour wishes to disband it. But it has attempted to recast it, and is likely to continue to do so. This is implicit in much rhetoric and action coming from government, such as reduced disability benefits; more stringent checks on jobseekers; vigorous attempts to get low-income lone parents into the workplace, and so on.

And like Labour's preoccupation with community and social order, its commitment to recast the welfare state has been a long-standing one. It is to be found, for instance, in one of the early contributions to New Labour social policy, the 1994 report of the Commission on Social Justice, a Commission set up by John Smith before his death. The report argued that the welfare state needed to be transformed 'from a safety net in times of trouble to a springboard for economic opportunity'. High social security spending moreover, is a 'sign of economic underperformance, not social success'. It is worth reminding ourselves that the Secretary to the Commission for Social Justice was David Miliband, now the Minister for Communities and Local Government.

For the purposes of this discussion, two points are worth making. First, this drive to reconfigure the welfare state has meant the erosion of social benefits for some of the poorest and most vulnerable in society, some of whom have ended up in the criminal justice system instead. This is partly because they may have resorted to criminality in the absence of a liveable minimum income. And it is partly because the criminal justice system has moved in to fill gap left by the retreating welfare state. Second, that in order to pare back the welfare state, and redefine it as an prelude to gainful employment, punitive policies have been adopted to force those deemed to be refusers into the workplace. This has meant a gradual coming together of criminal justice logic and wider social policy instruments, a movement likely to continue.

So to recapitulate, we have a government strongly committed to conservative notions of community and social order, and to a reconfiguration of the traditional welfare state that has in part had punitive and regressive implications. Both of these appear likely to inform significantly Labour's third term policies.

Policy levers

I now want to focus on three particular policy levers which in my view will prove crucial to Labour's third term: labour market policy; family policy and criminal justice policy.

On the first of these - labour market policy - we should remind ourselves that in the government's view this is intimately linked to the welfare state. Thus we do not have separate departments for Social Security and for Employment, we have a unified Department for Work and Pensions. Go to the Department's home page and the first sentence one reads is: 'The Department for Work and Pensions... is responsible for the Government's welfare reform agenda'. Labour market policy is about getting people off welfare. The existence of the welfare state in part reflects a failure to get people into work.

Offering help and support to those seeking work is not in itself problematic. The question is one of whether the 'work first' emphasis of current policy risks creating a punitive or coercive culture for those who do not work, or placing unreasonable expectations on individuals. The Social Exclusion Unit, for instance, estimated a couple of years ago that some 200,000 people in full-time employment also had caring responsibilities taking up an additional fifty hours a week.

Those who make up the client group of the criminal justice system likewise often face exclusion from the labour market. By increasingly structuring improved benefits and welfare around those who work, one consequence of current policy is that those who do not are pitched further into poverty. So a knock-on effect of a tough labour market and welfare policy could be an expanded criminal justice state.

Family policy seems set to become something of the frontline in the battle against yobbishness and for respect and community. Here is Tony Blair, speaking at a press conference in May on the subject:

I do think there are some very deep seated causes of this that are to do with... family life in the way that parents regard their responsibility to their children, in the way that some kids grow up, generation to generation, without proper parenting, without a proper sense of discipline within the family.

I think we should expect to hear a lot more of this kind of language, and of policy aimed at encouraging parents to exercise their responsibilities as the state understands them. Given the anticipated budget squeezes over the next few years, what is unlikely to follow is any major investment to make the job of parenting any easier. The knock-on effect could again be for some parents and some of their children to pop up in the criminal justice system, as Patricia Amos, the mother imprisoned because of her daughter's truancy, did last year. More subtly, we may find criminal justice agencies increasingly doing things that might more reasonably be considered beyond their remit. Current examples include youth work effectively being done by criminal justice agencies through the YJB-sponsored Positive Activities for Young People schemes. The Liverpool Community Court project, where mainstream welfare services are being delivered under the auspices of a courtroom is another.

All this points to the likely intensification of an already emerging trajectory: the ever increasing overlap of criminal justice with broader social policy.

This overlap is already taking place, and in part reflects long-established assumptions. Take, for instance, the Foreword by Martin Narey in a recently-published book, The Persistent Prison:

[I]mprisonment can be beneficial in the right circumstances. For a young man leading an utterly chaotic life, deeply addicted to drugs, unemployed and unemployable as well as being homeless, prison can provide a vital respite and a chance to start again... I make no apology for persisting in this unfashionable view that imprisonment can work.

That prisons might be considered places of possible rehabilitation is not new. And for as long as we have prisons, nor is it a particularly regressive view. But combined with a conservative view of community and social order, and an agenda to pare back the welfare state, it risks being very regressive. Nowhere in Narey's comments is there any explicit reference to this imaginary young man also having committed a crime. And while one might assume that this could be taken as given, the idea that prison can, never mind should, be some form of social service of last resort strikes me as depressing, if not downright dangerous.

In this context, it should not surprise that the number of people commencing a prison sentence, probation supervision, or both has grown from just over 260,000 in 1993 to just under 310,000 in 2003. Arrests for notifiable offences have also been on the increase in recent years.

Much has been made of the possible impact of media reporting, political rhetoric and public fears on the tougher sentencing framework. All have clearly had some impact. But it is important to understand that this expansion of criminal justice control, of which tough sentencing is a part, is itself determined in part by the broader logic of the government's social policy agenda: promoting a conservative social order, paring back the welfare state; a toughened labour market and family policy.

For these reasons, I think we should expect the ongoing expansion of criminal justice interventions into areas that are fundamentally social, economic and political problems. And this regardless of public attitudes, media reporting, political rhetoric, and so forth.

Implementation strategies

This brings me on to my third area: implementation strategies. I have two brief points here.

First we are likely to see a further expansion in criminal justice interventions in the coming Labour term. It is telling, for instance that the same government that considers a large welfare state to be a sign of policy failure considers a growing criminal justice state a sign of policy success. Yet both sets of policies are fundamentally focused on dealing with the same problematic: within an advanced capitalist economy how do you manage those marginalised elements in your population who are economically unproductive and, on occasion, socially destructive. As social policies to address these have been pared back, criminal justice policies have expanded to fill the gap. This is why, by the way, the government appears so complacent and cavalier about those traditional principles of justice that most liberals rightly defend. For the government the criminal justice system is at heart a form of social regulation, not a deliverer of justice in any meaningful sense.

Second, the creeping introduction of market forces and competition into the delivery of public services are likely to be consolidated in the criminal justice world in the shape of NOMS. This will present major challenges to the voluntary sector. As Una pointed out in her introduction, the first Labour term was characterised by a big tent style of politics, where charitable and campaigning organisations made common cause with Labour because they felt that they shared a common vision. The honeymoon has been over for some time. One of the ways Labour seems likely to keep the coalition of the willing going is to swap their big tent for a big competition, replacing the shared vision with a shared economic interest.