Old , New, Borrowed or Blue: What kind of penal policy can we expect from Labour in 2014?

2014, the last year before the general election, will see political parties developing their policies on, amongst many other matters, criminal justice. What will the Labour party come up with? Will they revert to an old Labour position, concerned as in their 1992 manifesto, to improve prison conditions, promote non-custodial sentences for non-violent crimes and take steps to eradicate the discrimination in sentencing policy which particularly affects women and ethnic minority offenders? Or will it be the tough on crime approach adopted by new Labour which saw prison numbers leap from 61,000 when they entered office in 1997 to 85,000 thirteen years later? 

A glance at their 2010 manifesto, drafted by current leader Ed Miliband, shows a compromise between the two approaches .On the one hand there are commitments to expand community payback for criminals who don’t go to prison, to increase alcohol treatment places and introduce a Restorative Justice Act to ensure its availability wherever victims approve it. On the other hand, the manifesto promised to create 94,000 prison places by 2014, a number way in excess of the present prison population.

Denied by the electorate the opportunity to implement these measures, early signs were that as leader of the opposition Miliband wanted to break from the immediate past and support Ken Clarke’s more moderate approach to penal policy. But he could not pass up the opportunity to savage Clarke’s plans for greater sentence discounts for early guilty pleas and since then Labour’s attitude to punishment has been ambivalent.

The party has never accepted, for example, that the indeterminate sentence of imprisonment for public protection (IPP) was an unjust folly and indeed seem unsure how far they dare stray from the Howard /Straw doctrine favouring the incapacitation of both dangerous and persistent offenders. With Straw standing down as an MP and his successor David Blunkett at least somewhat repentant about his shocking tenure at the Home Office, there is perhaps a chance for Miliband and Sadiq Khan to escape the historic influence of these big beasts and chart their own course on sentencing policy.

As for the Coalitions’ Probation reforms, the current leadership is equally compromised by the past. While The Independent may have reported that Khan would rip up contracts with private companies put before him to sign, he will have little choice but to honour those already in place. Straw had to do so in respect of private prisons despite his description of them, when in opposition, as morally repugnant. Khan, by contrast, is on record as basing his policy   on what works, rather than dogma, and claiming that the nine new private sector prisons provided by the Labour government have played a successful role in the prison system.  Even the spectacular failures of G4S and Serco seem unlikely to shift Labour’s fundamentally blue approach to private providers.

There are however three big ideas that Labour would do well to borrow as they put their manifesto plans together. The first would be to apply more thoroughly models of Justice Reinvestment which would see responsibility for the costs of imprisonment move from Whitehall to the local agencies which produce the supply of prisoners. Creating incentives for local partnerships to invest in prevention and reintegration would shift the centre of gravity away from unproductive use of prison towards more effective community based measures.

The second might see the largely successful work of the Youth Justice Board, created by new labour in 1998, extended to the next age group up- 18-21 year olds.

The third would adopt a similar approach to women; a separate Women’s Justice Board needs to be established to drive the hitherto piecemeal and uncoordinated efforts to establish an appropriate system for women in conflict with the law.

In the run up to the 1997 election a considerable amount of policy development was undertaken by Labour on criminal justice- largely on youth justice but also on community safety and prisons. What emerged may not have been universally welcomed, but the result was a relatively clear idea not only of what needed to be done but how. A similar project is surely required in 2014.   

2013 Back to the Future in Penal Policy

2013 will probably be remembered as the defining year for the coalition’s penal policy. Kenneth Clarke’s rejection of policies that “endlessly and irresponsibly inflate prison numbers for their own sake” has given way to Chris Grayling’s desire to   “create a fairer criminal justice system where … those who break the law are more likely to go to prison for longer”.  Inside prisons, the laudable ends of the rehabilitation revolution are proving increasingly undeliverable in a climate of severe cuts and harsher regimes. The wholesale reorganisation of community supervision looks overambitious, poorly conceived and overshadowed by a seemingly never-ending string of wrongdoing by the private sector.

In a number of areas of its penal policy, the Coalition government is looking to implement and extend approaches which have been developed and then discarded by the previous Labour administration. Controversial plans to outsource most of probation work were originally proposed back in 2003 and in large part rely on unimplemented provisions of Labour’s Offender Management Act 2007. The recently announced proposal to scrap separate Young Offender Institutions (YOIs) for the 18-21 year old age group and instead to place young adults in the wider prison system, was recommended back in 2007 but the Government then considered the time not right to proceed.   The decision to embark on the construction of a  “super” prison in North Wales for 2,000 prisoners and to consider a similar size establishment on the site of Feltham YOI in West London mark a return to the Titan prison concept also proposed in 2007 but abandoned two years later. All three policies have attracted almost universal condemnation from professional and academic commentators which perhaps makes it all the more striking that each has to a large extent and at different times  been supported by all three main parties.

It’s perhaps most surprising that the Lib Dems, in recent times the most inclined of the three  to champion penal reform , have signed up so willingly to such risky and questionable policies. Perhaps that will change with the arrival of Simon Hughes at the MoJ. Hughes urged Labour ministers back in 2007 to bring prison numbers down and more recently sat on the Joint Human Rights Committee whose report on the Offender Rehabilitation Bill welcomed the opportunity for the fuller consideration of changes to the probation service introduced by Lord Ramsbotham’s amendment.  Hughes’s appointment may be too little too late to hold up the sell- off of probation but he should be able to ask some serious questions about Titan prisons and stop the YOI plans in their tracks.    Whether he is able to influence events will be a test of his party’s resolve in this policy area and an indication of whether a liberal agenda on criminal justice will make it into their 2015 manifesto.

Next year will see all three parties shaping the policies with which they will fight the next election.  It seems likely that the Tories will continue to toughen their approach; a group of up and coming MP’s sees a  need to reverse the tide of soft justice, make prisons  tough, unpleasant and uncomfortable places , to ensure that persistent offenders are sentenced for prolonged periods and to privatise all prisons.  

But what about Labour? In the run up to 1997 they developed some big new ideas on crime and disorder, youth justice and drugs.  Serious work went into the development of policy and the infrastructure to deliver it.  I’ll consider what they might focus on this time round in the first blog of 2014.  

Inspectors Give Succour to Grayling’s Grand Folly

Whatever irritation Justice ministers may have felt about the weekend leaking of the risk report on their Transforming Rehabilitation changes , will have given way to delight with today’s inspection findings about the failures of offender management.  Why?  Because the findings can be used to make the case for the radical changes that they want to introduce to the prison and probation system. 

Yes, the findings cast doubt about the Prison Service’s capacity to implement their part of the new strategy designed to reduce reoffending rates, especially for short-term prisoners. But concluding that the National Offender Model is “more complex than many prisoners need and more costly to run than most prisons can afford” will be music to ministers’ ears. It will strengthen their resolve to cut costs and to roll back the frontiers of this little bit of the state. They will feel vindicated in replacing a failed national model with an assortment of arrangements paid for only if they succeed. It will be goodbye to an approach based on research findings and a desire to raise standards across the board. Welcome now to a black box approach in which government can withdraw its interest in finding out and implementing effective practice and leave that to the market instead.

The failings identified by the inspectors are real and need attention but the report does not make the case for throwing the baby out with the bathwater. Prison staff may be insufficiently trained to do the work; there are too few rehabilitation programmes, poor recording and a limited integration of offender assessments into the wider prison experience. But these are capable of fixing through proper resourcing and good management.

The Inspectors may even be right to conclude that the current arrangements should be subject to fundamental review. Where they are wrong is to say that this should be taken forward as part of the strategy of implementing Transforming Rehabilitation.  The review is needed before the landscape of offender management is profoundly and irreversibly reconfigured, not when the bulldozers have moved in. 

Reducing Rehabilitation

 When in opposition, the Conservatives were critical of the legislative hyperactivity of new Labour in the criminal justice sphere. But the coalition is proving just as adept at confusing the courts and the public alike about their approach to law and sentencing. Today they are implementing one set of reforms to non- custodial measures which became law in the Crime and Courts Act in April, while legislating for yet more changes in the controversial Offender Rehabilitation Bill.   

We should perhaps be celebrating the coming into force of the provision enabling courts to defer sentence so that offenders can engage in restorative justice activities with the victims of their crime in appropriate cases. But without resources, a much needed option, used very widely on the continent, is likely to remain the exception rather than the rule; we are left to wait for "secretary of state guidance" to see how it will work.

In the meantime, alongside this potentially positive measure, courts will now have to include a punitive element whenever they impose a community sentence on an adult. This means a fine and/or a requirement made for the purpose of punishment. This seems potentially to include any of the existing requirements (which in individual cases might be punitive)  but courts are likely to impose more in the way of unpaid work, curfews and exclusions from certain areas. As the Government themselves acknowledge, there is a risk that some of the rehabilitative benefits of current Community Orders could be lost with adverse implications for the re-offending rate . Tougher requirements may also make compliance more difficult and breach more likely.

Whether the net  result will be more  prisoners depends on two other factors- will the changes persuade sentencers to make community orders today in cases that yesterday were deemed so serious that only custody will do?  Arguably they should do since the punitive weight of the new orders will be greater than they were. The government made a commitment to discuss with the Sentencing Council   whether any changes would be needed to existing sentencing guidelines but nothing seems to have come of it.  It is also possible, though highly unlikely, that tougher community sentences will have some kind of deterrent impact on offenders or the wider public.

So the costs of custody may go up as a result of these changes . But what about the costs of community orders.Some punitive elements are a good deal cheaper than rehabilitative ones.  The government’s strategy is to fund the supervision of short term prisoners by reducing the costs of community orders. As well as achieving this through privatisation,  they may end up doing so, paradoxically by reducing rehabilitation. 

What the Justice Committee should ask about Mr Grayling’s Great Leap Forward

What should the Justice Committee ask the Justice Ministers in their hearing today? The session forms part of the inquiry into Crime Reduction Policies: A Coordinated Approach? But its terms of reference are wide enough to cover almost anything. Over the last year, Mr Grayling has embarked on a twin approach of radically cutting costs and imposing a political ideology, making him something of a cross between Chairman Mao and Ebenezer Scrooge. As befits the season, he will be bringing Bob Cratchit with him to Parliament today. 

On prisons, key questions the Committee might like to know:
a)    What has happened to the proposals for transforming youth custody for under 18’s which promised bold and imaginative ideas for change? Is it true that the Treasury is refusing to fund them?
b) Despite no announcements on the juvenile secure estate, the Government is proposing to scrap separate facilities for young adults. Do Ministers seriously think that greater protection and better regimes for this age group can be provided in the wider prison estate and if so how?
c) Do Ministers  consider that the well documented problems at  privately run HMP Oakwood are teething problems and that the unit costs of £13,000 per prisoner place can provide a benchmark for the rest of the service?  Or is it true that G4S puts in extra resources of its own to run the establishment safely.
On Probation, the committee might have a further go at finding out more details about :
d)   the cost assumptions underlying the new system that will enable  Ministers to fund the supervision  of short term prisoners on top of existing work and what qualifications will be required of staff involved in both the new and existing supervision
e) whether ministers are confident in the ability and propriety of private sector providers in the light of concerns about existing contract performance and what extra costs will be needed to supervise and monitor future contracts in the light of the failures to do so adequately in the past

f) What if any discussions they have had with the judiciary about their plans to outsource the probation service’s work?
There are many more detailed issues about the progress of Mr Grayling’s seemingly uninterrupted revolution. Whether today’s discussion of his affairs will turn him from miser to philanthropist remains to be seen.