David Faulkner reflects on party politics and the role of the market state in criminal justice.
The recent speeches by David Cameron, Chris Grayling and Theresa May in some ways invite comparison with Michael Howard’s speech at the Conservative Party Conference in 1993. Both were times of internal divisions within the Conservative Party and poor ratings in the opinion polls. There was the same, now familiar, language of being tough on crime and on the side of the victim, of making community sentences more punitive and of sending more people to prison. There was again the sense of a change of direction away from supposedly ‘liberal’ policies of the recent past.
A difference is that whereas Michael Howard had plenty of scope for his twenty-seven pledges to introduce more punitive policies – in sentencing, the treatment of offenders and the criminal justice process itself – the government now has very little. The barrel is almost empty and there is not much more to be scraped from it. The speeches served an immediate political purpose but they were irrelevant to the general problem of crime or of justice to victims or offenders. It is a pity that the government intends to introduce even more statutory restrictions on the courts’ discretion in sentencing, when the movement should be in the opposite direction. Increasing the ‘punitive’ content of community sentences will demand resources and therefore money which may or may not be available, and will be self-defeating if more offenders then breach the conditions of their orders. There is a welcome emphasis on rehabilitation but it is hard to tell how far it is driven by an ideological commitment to payment by results and cutting back the public sector. The government seems to be relaxed about, or may actually seek, an increase in the number and length of prison sentences and claims that spare capacity is available. Some increase seems inevitable, regardless of any changes in legislation: rightly or wrongly, and consciously or unconsciously, courts have for the last 30 years adjusted their sentencing to political and public opinion.
The most important issues are not however in the detail but in the changing social and political context which the speeches reflect. They are an illustration of what Philip Bobbitt in The Shield of Achilles has called the ‘market state’. His argument is that whereas the old nation state based its legitimacy on a promise to better the material well-being of the nation as a whole, the market-state promises to maximize the opportunity of each individual citizen, using the mechanisms of the commercial market to do so. That promise has been characteristic of successive governments for the last 20 or 30 years. An emphasis on the responsibility, reward and penalisation of individuals is one aspect; outsourcing and commissioning services from the private sector and payment by results are another.
The emphasis on individual achievement and failure is deliberately divisive. It creates and reinforces an almost Victorian distinction between the honest, striving and economically productive members of society who are to be rewarded and protected, and the criminal, cheating and scrounging minority who are to be controlled and coerced. The emphasis on individual responsibility and risk assessment pays little attention to communities or to social conditions and responsibilities. It enables the favoured majority to escape responsibility for social disorder, to blame in on the criminality of individuals (as was done after last year’s riots), and to see punishment as the solution. It has little sympathy or compassion for those who have criminal convictions or are disadvantaged in other ways, or for their families.
The purpose of outsourcing, or ‘contesting’, as the government sees it, is to transfer financial risk from the taxpayer to the investor, with the financial protection, the reduction in costs and the greater productivity that are assumed to follow. That assumption is more a matter of political conviction and ideology than a conclusion based on evidence, and experience in other areas of public service has not been reassuring. For an essential public service, there is little protection for the taxpayer when things go wrong, as they did over the provision of security guards for the 2012 Olympics. The public sector is always the provider of last resort. There are very real differences between the public and private sectors, in their culture and in the structure of their accountability. One is not better than the other but the differences matter, especially when they came to affect the services that are part of fabric of British society. The public sector does not have a monopoly of professional standards or leadership, but they are harder for an employer whose aim is to employ staff as cheaply as possible in order to compete for contracts. Punishment, public protection, even justice itself, should not be treated as though they were products or commodities to be bought and sold in the market place. Payment by results is an open invitation to ‘gaming’, and a simple test of reconviction is especially open to manipulation. Democratic accountability is hard to reconcile with commercial confidentiality. Dr Beeching said fifty years ago that ‘The concept of public service blurs the concept of commercial enterprise’. The same is true in reverse.
The government’s consultation paper on probation services acknowledged that there are some functions which governments, or the state, should not attempt, and others which should only be performed by public sector organisations accountable to ministers and Parliament. The principles on which that distinction should be made have not so far been seriously discussed in the present context. Many of the functions of criminal justice involve judgements about a person’s character and behaviour which may affect the person’s reputation and liberty, the situation of their family, and public’s safety . Those judgements should be made within a statutory framework, in accordance with due process and professional standards and by public servants who are accountable ministers and ultimately to Parliament and free from considerations of their employers’ profitability or commercial advantage. That principle should not be compromised and it is hard to see, for example, how offender management could properly be ‘competed’, even for low-risk offenders.
There is at present little interest in challenging the market state in mainstream politics. But a future government might come to have more respect for evidence and more generosity of spirit, and feel able to move away from the bleak economic and commercial models that have been prevalent for so long. It is ironic that Theresa May’s best day in the House of Commons was when she stood up for a person’s human rights.
David Faulkner is an Associate at the University of Oxford Centre for Criminology