As the Conservative Party conference yesterday enjoyed its “crime day”, the recently appointed justice secretary Dominic Raab took to the stage – making headlines with his promise to end the “nonsense” Human Rights Act.
There was no mention, however, of the 60,000 case (and rising) backlog in the courts, including 500 violent crime and sexual abuse victims waiting more than two years. Nor was there reference to the part-derelict prison estate, still forced to hold increasing numbers of offenders – and for longer – in overcrowded accommodation.
There was also no acknowledgement of the parlous state of the probation service, still reeling from its fourth major restructuring in 20 years and the latest shambolic privatisation experiment judged by HM Inspectorate of Prisons to be “irredeemably flawed”.
After six years of near-constant organisational flux – symbolised by the fact that the department has had no fewer than eight secretaries of state since 2010 – it’s fair to say the Ministry of Justice is in need of clarity and stability. A pity, then, that its newest political master showed yesterday he is blatantly more comfortable with the well-trodden path of populist punitiveness than urgent or genuine reform.
Raab, or “DPM” (deputy prime minister, as he is already referred to in the department), has eyes firmly fixed on the next election. His priorities are both ambitious and modest. As his preferred acronym makes clear, he’d like to run the country – as he did, briefly, when Boris Johnson was seriously ill with Covid last year. But having secured only a slim 4.3 per cent majority in 2019, he must simultaneously tend to his constituency patch with a degree of attention that most cabinet ministers are spared.
His impatience is palpable. Arriving at the department, as one official at the Ministry of Justice told me, he wanted to know specifically what was deliverable before the next election. “He doesn’t want to read introductory documents, he wants to make decisions,” they said.
One such decision, disclosed to a half-empty conference floor in Manchester yesterday, is the doubling of offenders who will be electronically tagged. “We’re announcing it at conference rather than waiting for the spending review, which is quite risky,” said the same source.
It’s risky because the basic funding for tagging won’t be guaranteed until the review at the end of the month. And it was announced at conference with aggressive theatricality because Raab is serious about making a splash at the department – and less concerned about whether doing so is good for the justice system or not.
Of course, for the Ministry of Justice, which has lost a quarter of its budget over the past decade, the problems go far beyond the ministerial cycle and Raab’s political inclinations. It’s true that, as well as chronic underfunding, he inherits a broken and ideologically confused criminal justice system: one which simultaneously pledges allegiance to principles of rehabilitation, retribution, public protection, reducing crime and restoration – and has done so since the infamous Criminal Justice Act 2003 dashed off this shopping-list of confused sentencing objectives.
But Raab’s appointment could yet signal a turning point in justice, for a number of reasons.
The first, evident in this tagging announcement, is the enhanced faith in the marketisation of the justice system, or what Professor David Garland infamously called “penal-modernism”. Yes, the privatisation of probationary services since 2014 has been an indisputable failure, a fact admitted by the government itself. A return to the unified, public probation system was welcomed when, in June 2021, all of those on a community order or released on licence would be managed by a new government probation service (and not, as was previously the case in around half of cases, private providers).
Still, tagging is a lingering concern: it has always been contracted out by the government, so the expectation is that its expansion will follow suit.
This might sound pernickety, but it is hugely important. The government has an appalling record on being defrauded by the private contractors who cream profits from running their tagging operations. In the last two years, five former executives – two from Serco, and three from G4S – have been charged by the Serious Fraud Office (SFO), with both companies paying tens of millions in fines. In spite of which, it’s highly likely one of them will be awarded the contract to run this latest operation.
Marketisation doesn’t, as we were told when privatisation was introduced in the government’s Transforming Rehabilitation strategy in 2013, mean paying for “what works”. It is the point made by Frances Crook, chief executive of the Howard League for Penal Reform, who reminded Tortoise this week that the evidence on tagging is patchy: domestic abuse offenders are among the few who the policy may work for, as their proximity to victims can be better monitored. Women might therefore avoid shelters, as an alarm – followed by arrest – would occur should the perpetrator come near them. In the majority of cases, however, it merely extends the control and stigmatisation which makes escaping the criminal justice net so difficult for so many.
Second, Raab is desperate to ensure his role is not viewed as the demotion that it obviously is from his former position as foreign secretary. His champions – such as they are – suggest that this is no bad thing: for a politician of Raab’s experience still to nurse hopes of the top job will, they claim, boost the department’s visibility and, perhaps, secure increased funding.
In truth, this is highly improbable. Johnson is well aware of the desperate state of the justice system, and the compelling case for an urgent injection of cash. How could he not be? Robert Buckland QC, Raab’s predecessor, was hardly obstructing change: his parting words to Johnson, in a plea for increased funds, were that “justice is without price”. Raab’s values seem very different: a stridently populist embrace of slogan-led “toughness on crime” rather than an evidence-led immersion in the detail of justice policy.
England and Wales are now Western outliers in this field: we incarcerate more per capita than any other European nation, and will incarcerate many more over the coming years as new sentencing rules take effect (the government is building new prisons and providing 18,000 additional inmate places). A slew of net-widening policies – yesterday’s tagging announcement included – will bring many more into the criminal justice fold. This policy trajectory is wildly misaligned with the data on what actually reduces reoffending. But ministers like Raab assume – mostly correctly – that they will be subject to little public pressure in this respect. Ministers that talk tough on crime are usually rewarded with air-time and headlines and clicks.
Who is standing in his way? It certainly isn’t Labour, who used their conference to align themselves more fully with the government line. Nick Thomas Symonds, the shadow home secretary, explicitly revived New Labour’s policy of “tough on crime, tough on the causes of crime”. Evidently, private party polling has shown the public think the justice system should be harsh, and Labour, desperate to restore electoral credibility, is content to pretend that such measures foster rehabilitation and – in the final analysis – public protection. None of this is news to Keir Starmer, a former director of public prosecutions. But, in this case, the obligations of statesmanship and public service are – it seems – trumped by a race for popularity.
This broad alignment between the two parties matters, because it severely limits the political scrutiny to which Raab will be subject. We now know with certainty that Michael Howard’s famous 1993 assertion that “prison works” was wrong: short sentences especially make it more, and not less likely, that you’ll reoffend – and cost the taxpayer a great deal in the meantime. Yet the justice secretary will be overseeing a £4bn expansion of the prison estate, and Labour will sit quietly as he does so. More useful would be a strategy which systematically integrates – rather than cherrypicks – the evidence on what does work: education, employment opportunities and genuine availability of services to address vulnerabilities which inform offending patterns. Will all those with alcohol dependency monitored by this new tagging, for instance, be receiving requisite support? It’s unlikely.
There’s a serious risk that the much-needed debate on criminal justice will be reduced to a rubber-stamping exercise or, even worse, a game of one-upmanship between two parties vying for punitive credentials. At Tortoise, we’ll be investigating these policies over the coming months in an attempt to fill the vacuum. Clearly, Raab’s stint at the justice ministry does not represent a challenge to the doctrine of populist punitiveness that – with occasional intermissions – has dominated the sector for decades. Quite the opposite: it shows every sign of compounding the errors of the past.