During the run-up to the 2010 General Election it looked a dead cert that, after four successive failures, the Conservatives were finally heading for an election victory and would once again win back the mantle of the Party of Law and Order from their New Labour usurpers. Yet long before the Tory election bandwagon had finally managed to limp over the finishing line and into Downing Street, with a last minute helping push from the Liberal Democrats, the criminological lifeblood that had so invigorated the Tory faithful on previous election trails had steadily begun to drain from the government-in-waiting’s prison policy, leaving behind a potentially very anaemic version of a once ‘red in tooth and claw’ version of Tory orthodoxy. What happened to bring about such a volte-face and should we in any way be surprised that it was a Hush Puppy-wearing certified ex-Wet that answered David Cameron’s 999 call to save the Ministry of Justice rather than a certified practitioner of the 'Prison Works' school?

The Real Origins Of ‘Prison Works’

We all know that the Tory Party has long been recognised as the official home of the ‘Hang ‘em, Flog ‘em Brigade’ but its role as the rightful Party of Law and Order is something of a recent development, as in fact is the idea of crime and prisons being a major votes winner. True, it had always been a factor in past election manifestos and speeches but it had never been a particularly distinguishing feature among the major parties. Nor had successive governments paid particular attention to the appalling state of the prison system whilst in power, where prisoners were forced to endure regimes maintained by a routine brutality that would ultimately lead to the uprising and riots that swept British prisons in the late 1970s and ‘80s.

The origins of the ‘Prison Works’ concept is commonly and erroneously dated back to the coining of the phrase in Michael Howard’s infamous speech to the Conservative Party Conference in October 1993 as the new Home Secretary. However, he was merely the first one to fully and publicly embrace a set of U.S.-influenced changes that had already begun to creep into UK sentencing policy. The first instance of this dates back to the Criminal Justice Act 1991 (CJA ’91) and the eventful tenure of Kenneth Baker as Home Secretary, [1] which saw the publishing of the Woolf Report into the Strangeways prisoners' uprising whilst sporadic prison rioting was still breaking out across the country, along with the introduction of the highly contentious Dangerous Dogs Act and Baker himself being found guilty of contempt of court by the Court of Appeal.

The CJA ’91 had originally been designed to ‘rationalise’ sentencing policy: to introduce more consistency in sentencing, by trying to make sentences proportionate to the offence, without taking into account previous offences; as well establishing the recommendations of the 1988 Carlisle Report on the Probation Service. Instead it confounded the ‘liberalising’ principle of making sentences commensurate with the crime by introducing the principle of ‘selective incapacitation’, in this case for violent and sex offenders, allowing for additional sentence time based on preventing some notional future ‘risk’. This actuarial methodology, viewing ‘crime as risk’ rather than the act of individuals, who should be subject to punishment and reformation, had become firmly established in American sentencing policy and law during the previous decade with the introduction of mandatory minimum sentences and enhanced sentences for persistent offenders, and would ultimately lead to the ‘Three Strikes’ legislation.

Also tagged onto this Act were provisions for the privatisation of prisons via the outsourcing of building and management contracts, [2] initially restricted to newly built facilities and, in 1993, extended to existing public prisons. This finally opened up a whole new market to the American multinational outsourcing companies specialising in prisons, the very same companies that had lobbied hard at State and Federal levels for the introduction of this incapacitation legislation, which had in turn helped establish a market and power base for the U.S. Prison Industrial Complex (PIC).

‘Tough on Crime'

Both measures were fully embraced by Michael Howard and formed the signature of his tenure as Home Secretary. The first allowed him to continue the Thatcherite project under the guise of John Major’s ‘Back to Basics’ campaign, being ‘Tough on Crime' by the simple expedient of locking up ever more criminals, resulting in a the prison population which had in previous years been steadily falling, from a decade high of 48,872 in 1988 to 41,561 in January 1993, rising to a new high of 60,131 by the end of his time in office, a whopping 45% increase. Along side this massive increase, the introduction of the market into the prison system became the most obvious and ideologically acceptable route to the building of the new prison places needed in the short term to accommodate the expanding prison population; as well as reluctantly helping achieve some of the promises, such as an end to overcrowding, slopping out [3] and prisoners having to serve their sentences far from home, made by the government following the Woolf Report. [4]

Needless to say, Howard was less than enthusiastic about the prospect of having to implement Woolf’s far from radical list of recommendations. However, the one item that truly caught Howard’s old school punitive fancy was the Prison Service’s response to Woolf’s idea of a compact between the prison and prisoners, balancing rights and responsibilities on both sides. Ignoring the reformist principle behind this recommendation, the Prison Service came up with the Incentives and Earned Privileges Scheme (IEP), introduced in 1995 as a method of buying the compliance of prisoners through a “coherent system of incentives, with sanctions, that will encourage better behaviour”, [5] it was the ideal tool for regaining control of a mutinous prison system. Much more in keeping with the ‘Prison Works’ mantra, especially as the three-tier IEP was directly tied to the compulsory attendance of work and education courses. Howard’s other major legislative coup [6] was the Crime (Sentences) Act 1997, which introduced mandatory minimum sentences to the UK, including automatic life sentences for second-time serious offenders, effectively a ‘Two Strikes And You're Out’ law, firmly establishing incapacitation as being the primary role of imprisonment.

The Advent of New Labour

Whilst the Tories had spent the early 1990s gradually junking any form of consensus that had previously existed between the main parties on the subject of crime and prisons, [7] abandoning the move during the ‘70s and ‘80s towards an increasing use of probation along with measures such as Community Service Orders and suspended sentences as alternatives to imprisonment, the Labour Party somewhat reluctantly came to believe they would have to ditch any lingering liberal qualms they might still harbour about embracing the Daily Mail line on law and order and prisons if they were ever going to re-electable.

The beginning of this fight back came somewhat surprisingly from a young pre-Labour leadership Tony Blair when he was Shadow Home Secretary. Expanding on Howard's "Tough on crime" rhetoric, he wrote an article for the New Statesman in 1993 entitled ‘Why crime is a socialist issue’ where he first coined the phrase ‘Tough on crime, tough on the causes of crime’, [8] promising that pre-New Labour could and would run the criminal justice system more efficiently i.e. punitively than the Tories. During the punishment arms race that ensued, Blair and his successor Jack Straw ended up abandoning their notionally socialist position on the structural causes of the rise in crime and adopting wholesale that of the Tories, such as a breakdown in family values and too few police on the streets, in a desperate bid to make Labour electable again. And electable they duly became.

Having gotten into power by sounding like the Conservatives, New Labour then proceeded to espouse many of the Tory ‘innovations’ that they had vehemently objected to in opposition. [9] So, without actually publicly endorsing the ‘Prison Works’ motto, New Labour continued Howard’s massive expansion of the prison estate, [10] continuing the PFI building and management projects already underway following their win and signing further contracts for new privately built and run prisons. In fact, PFI became the only show in town, with all new prisons and Secure Training Centres built since 1997 built using that financial model. Not stopping there, Labour extended the market further to escort and court services, state-run prisons considered to be ‘failing’ and even creating Probation Trusts, which would also be open to privatisation if they were declared as ‘failing’.

4,300 New Laws And Not Just In Blackburn, Lancashire

And having secured these new prison places, New Labour proceeded to fill them by enacting vast swathes of new laws - 4,300 in their 13 years in power, 1,300 of which carried prison sentences - in a vain attempt to try and keep to the first part of Blair’s credo. Unfortunately, new prisons and a burgeoning prison population cost ever increasing amounts of tax payers’ money, even if the majority of the infrastructure payments were being deferred to future years through PFI. New Labour’s profligacy whilst in power began to bite in the latter ‘00s, meaning savings had to be found and the Ministry of Justice (MoJ) had to budget for 3% year-on-year cuts. These began to hit the prison service hard and prisoners hardest of all, with for example out of cell time cut. [11] The prison unions responded by threatening industrial action and it began to look increasing likely that the government would have to take on the Prison Officers' Association (POA) if they were to make any headway in cutting prison costs.

In 2008, New Labour introduced proposals for a Workforce Modernisation (WfM) programme, effectively forcing a 2-tier pay structure onto prison officers, with any new recruits entering at a lower grade, and establishing things like a new more onerous fitness standard. It went without saying that the POA were not going to accept such proposals lying down and began a series of work-to-rules, having lost their previously reinstated right to strike following a pay dispute in 2007. [12] The rolling campaign of overtime bans, ‘withdrawal of good will’ and refusal to out duties such as suicide watches had little effect and the protests slowly petered out.

WfM would also help smooth the passage of another New Labour cost-cutting initiative from Jack Straw announced in 2007, the plan to build three U.S.-style Titan prisons, each holding 2,500 prisoners, almost double the size of the next largest prison in England. This programme would continue the practice of concentrating prisoners in Clusters, amalgamations of neighbouring prisons with their potential savings on staff and administration costs, along with other overheads. Like WfM, the POA were implacably opposed to anything like the Titan concept as it meant fewer members for them, but fortunately for the POA, the consultation process showed that nobody of any significance actually supported the introduction of Titan prisons and to save further embarrassment Straw was forced to revise his plans.

The Pre-Election Period

Instead, the Justice Secretary was forced to opt for five smaller 1,500-place ‘mini-Titans’ in order to continue with New Labour’s planned expansion of the prison estate in England and Wales to 96,000 places by 2014. That scheme, along with proposals to market test seven public prisons deemed to be ‘failing’, probation trust and the usual tired rhetoric on "Tough action on crime and anti-social behaviour", Family Intervention Projects, ASBOs, 'Community Payback', CCTV and DNA, also formed the core of the party’s 2010 election manifesto. [13]

The Tories on the other hand, like Labour before them, had spent most of their time in opposition undergoing an seemingly endless succession of party leadership contests accompanied by the associated Shadow cabinet reshuffles, and their crime and prisons policy remained substantially the same as the one New Labour had previously cloned. That was until the Cameron/Brown successions made the Tories and their various associated ideologues suddenly believe that they were electable once again. Party apparatchiks set about writing new policy, cherry-picking policies from around the world, usually with little or no apparent grasp of the different dynamics between societies, as long as they fitted the post-Blair Liberal Conservatism that was in the Tory air. The right wing think tanks fought back, jockeying for position as each side tried to get their latest pet theories adopted by the Cameronites.

So, in addition to the usual suspect such as Civitas (long-term keepers of the Howard flame, churning out its endless stream of ill-researched rightist bang 'em up propaganda) we had some new kids on the block taking a completely different criminological tack, such as Policy Exchange and failed Tory leader Iain Duncan Smith’s Centre for Social Justice (CSJ), sketching out a new much less punitive approach to penal policy. These were much more in keeping with Cameron’s fluffier Conservatism and his ‘broken Britain’ rhetoric. [14] They also tended to reflect the growing influence of Phillip Blond’s inane Red Tory book [15] and the notion of the ‘Big Society’, the very British corollary to the U.S. Right’s ‘Big Government’ dogma. Thus, large chunks of the CSJ’s ‘Locked Up Potential’ report, carried out under the Chair of Tory old lag and self-appointed prisoners’ friend Jonathan Aitkin were included in the Conservative’s 2010 election manifesto’s penal policy section, [16] in particular those that chimed with the new air of austerity. Alongside these a smattering old school bang ‘em up provisions, such as automatic jail sentences for knife possession and the introduction of minimum-maximum sentences, were included to keep the Daily Mail readers happy.

One particular flagship policy, and one much more in keeping with the old Howard-style Tory penal agenda, that did not make it into that manifesto was the plan to out-build New Labour on the prisons front, keeping the existing programme but building an additional 5,000 prison places to bring England and Wales up to the 100,000 mark by 2016. This was to be financed by the selling off of 30 Victorian inner city prisons, all on prime real estate sites, and to be built on new out-of-town sites. The genesis of this scheme appeared to be based on the model of HMP Oxford, a retired Victorian prison that was transformed into a successful upmarket hotel. However the plan failed to take into account the fact that most of the prisons involved had listed building status and could not be demolished or subjected to radical change. That, and the economy taking a nosedive, put paid to the idea and it was quietly dropped. [17]

A Very British Coup

If the state of the economy and the need to make significant cuts in the deficit had been something of an uncomfortable influence before the election, post-election it has certainly proved to be much more of a game-changer. In fact, many would say that it has also proved to be window dressing for the real ideological agenda of the ‘Big Society’ concept, the reigning back of ‘big government’. And the advent of the Coalition and the participation of the Liberal Democrats provides both the ideal cover and potential fall guys should the ruse prove less than successful.

The Coalition’s deficit reduction plans call for a 25% reduction in governmental spending plans over 4 years, with some departments having to find up to 40% ‘savings’ if certain sectors such as health spending are to be ring-fenced. The MoJ would have to find at least £2bn, the equivalent of the entire prisons budget, from the Ministry’s total spend of £9.6bn, most of that being cut in the first 2 years. [18] To oversee the decapitation of a major part of the Ministry, David Cameron appointed Tory Big beast Kenneth Clarke, much to the consternation of many Conservatives. And their worst fears were realised when Clarke’s first pronouncement as Justice Secretary was to claim that ‘Prison Does Not Work’ and state that he would cut the number of people sent to prison on short sentences in favour community punishment, thus signalling a return to a version of the 1980s Tory penal agenda. Also signalled were the closure of a quarter of all courts and extensive cuts to the £2.2bn legal aid budget. [19]

The ‘Rehabilitation Revolution’ Merry-go-round

In announcing his ‘Rehabilitation Revolution’, Clarke cited the example of Canada in the early 1990s where the government there was able to cut the country’s prison population whilst at the same time cutting crime. The ultimate irony of this is, other than the fact that ‘Prison Works’ advocates routinely cite a similar crime rate drop in the U.S.A. during the same period accompanied by a massive increase in the numbers of people they sent to prison in support of their position, [20] is that the Canadian government are currently going in the opposite direction. The minority Conservative government re-elected in 2008 ran on a manifesto promise to significantly expand the prison system, introducing the sort of laws that the UK Tories were even then deciding to ditch [21], together with the US-style super prisons that New Labour had been forced to abandon. All this despite the acknowledging the problems the country faced given the global financial recession.

The results have been almost immediate and inevitable, with a massive spike in the prisons population already and the ‘Truth in Sentencing’ Bill only became law in February this year. However, like many cash-strapped governments around the world, the Canadians are currently unable to afford to build any of their promised new prisons. Instead, they have been forced to postpone the entire programme and expand the existing Federal and District jails, many of which were slated to close under the expansion plans, as well as relaxing their strict limits on double-bunking, [22] in order to accommodate the new prisoners. How much the Canadian Conservatives’ experiences over the past couple of years have also influenced Clarke he is not currently letting on, yet any plans he comes up with will largely be subject to the same financial constraints. My guess is that, like much that is going on within the Coalition, he is largely making it up as he goes along.

What we do know however is that the results of the Coalition Spending Review are due to be published later this autumn, once the inevitable departmental jockeying for position and ministerial grandstanding is all over. For the Ministry of Justice and Ken Clarke part, he appears to have made every effort to identify his cuts early, spooking many MoJ staff by publicly claiming he could find his department’s 40% if needed. However, his is not one of the Whitehall departments to have reached spending agreements with the Treasury and he will not sit on the so-called ‘Star Chamber’ that has the final say on the cuts suffered by those departments yet to reach such an agreement.

Possible Cost-Cutting Routes

Either way, it will be difficult to find the £325m cuts expected this year, let alone the £2.4bn over the whole 4 years of this parliament, even allowing for the fact that Whitehall mandarins had already foreseen that any new government would need to make swinging cuts and had already started a review process. And like any reform of this sort, in order to save money in the long term the government needs to invest in root and branch restructuring rather than short term fixes but that appears not to be the plan as Duncan Smith has found out to his evident frustration at Work and Pensions. In fact, such short-termism can actually end up costing more in the long run by having exactly the opposite effect than the one desired. Take for example Clarke's plan to change sentencing rules to increase the discount for those that plead guilt at an early stage whilst restricting the sentence reduction for guilty pleas once the trial has begun, this will almost certainly lead to an increase in the plea bargaining culture and lead to more people ending up in prison, not fewer, and the courts moving even closer to the American model.

None of this bodes well for MoJ staff, who take up a major proportion of the department’s total budget. There have already been warnings that up to 15,000 or roughly 20% of the 80,000 staff could lose their jobs, saving something like £0.8bn. [23] HM Prison Service (HMPS), with nearly 50,000 full time staff equivalents, would bear the brunt of those personnel cuts, especially as the HMPS wages bill account for 80% of the total HMPS budget. [24] Some of those will by choice come from the administrative side but, given that they account for less than 5% of all staff, most will come from the ‘programme’ side and the 26,000 or so prison officers, with their £0.75bn wages bill (including social security and other pension costs). [25] The major problem with any cuts in the numbers of screws is that it will be the prisoners that suffer as they will almost certainly have to spend longer banged up in their cells as happened after the recent change in the ‘core week’. [26]

Not that there is that much fat left to be cut as so-called ‘Value for Money’ programme savings have already removed a lot of slack from the MoJ’s budget. In its 2008/09 annual report, NOMS outlined £81m in savings that it had made, much of it coming from the prisons budget including the savings already mentioned on the ‘core day’, the clustering of HMP Sheppey and HMP Isle of Wight, staff cuts and IT costs. [27] For the same financial period, the MoJ claimed that it had made overall savings of £329m, mostly in cuts to the legal aid budget and the court service (in addition to the NOMS savings just mentioned). However, the National Audit Office disputed this figure, claiming that they could find no documentary evidence to justify such a claim. [28]

One potential high-cost area for possible savings is the prison-building programme enthusiastically inherited from New Labour. The coalition has already cancelled the planned 360 place juvenile prison at HMYOI Glen Parva, saving around £300m in favour of investing in cheaper adult prison places. Against this, the government has also signed contracts with Serco to build two planned 600-place prisons at Maghull on Merseyside and Belmarsh West, the latter increased in size to 900 beds, with all the indications being that there will be no overall cuts in the Labour prison expansion plans. [29]

Other potential areas that could be cut include the numerous ‘offending behaviour’ modification programmes that Labour enthusiastically introduced into prisons, with little or no evidence base as to their effectiveness. A classic example of this are the Dangerous Severe Personality Disorder (DSPD) units, which currently costs £240m a year to run the 4 units with their 250 beds. Ostensibly introduced to treat and cure a new form of ‘psychopathy’ first posited in 1999 [30], this programme was very much in keeping with the ‘risk management’ ethos pursued by New Labour, and, as many predicted at the time, it has largely been a failed exercise. Prisoners, whose only ‘illness’ is an inability to follow prison rules or who the prison authorities do not know how to deal with, have ended up in a Kafkaesque nightmare, trapped in limbo for years on end for little or no gain. [31]

Privatisation is obviously one of the current government’s more preferred routes and the previous government has already created a well-worn path in its pursuit of Justice Department budget savings. For example, the entire prisons education programme was outsourced to The Manchester College in 2008 but the scheme has already run into trouble because the company underbid for the contract and is having to lay off teachers and renegotiate other staff contracts in order to cut costs. Rationalisation of MoJ services is another currently favoured idea, with the possible amalgamation of prisons and probation services which would then be split into local justice trusts, as has already happened to the National Probation Service. These would operate on a payment-by-results basis in the same way that the recently launched rehabilitation pilot programme at HMP Peterborough. [32] The problems with this idea are numerous: for a start, probation has already undergone a number of significant changes in recent years; then there is the constant moving around of prisoners from prison to prison, often half way across the country; as a consequence, this idea could only work with short-term prisoners, exactly the ones Ken Clarke wants to see removed from the prison system.

Another suggestion, also borrowed from the CSJ report, is the idea of doubling the size of Contract Services, the Prison Industries workshops that carry out contracts for private companies, as a way of bringing in additional funds as well as enhancing prisoner rehabilitation. Unfortunately, Contract Services England and Wales only brought in a measly £7.08m in sales in 2007/08, [33] which is a mere drop in the ocean compared to the cuts Clarke has to find. Also, given both the general downturn in the economy and the squeeze on the prisons’ capital budget, it is unlikely that there will be many new contracts out there for individual prisons to win or the new workshop space needed being built in the foreseeable future.

The Kindest Cut

That just leaves the prospect of cutting the overall prison population as a way of cutting costs, which brings us back to Ken Clarke’s initial announcement of the ‘Rehabilitation Revolution’ and the suggestion that really riled the Tory press as well as getting Michael Howard out of his coffin into the daylight. Cutting sentences of 6 months or less could take a significant number of potential prisoners out of the system [34] but, inevitably, the more onerous the community punishment handed down, the more likely the offender is to end up serving time in prison. Another possibility is at either end of the 'justice process'. Here too the prevailing risk-averse culture in the criminal justice sector makes it increasingly difficult for people pre-trail to avoid being remanded into prison or for prisoners nearing the end of their sentence to gain parole. [35] It therefore follows that a complete overhaul of bail provision and the Probation Service would free up further prison space. Reform of the prison service’s approach to end of term offenders could also free up a number of Category D open prisons to be recategorised, increasing the secure estate and allowing for cuts to the prison building programme. It is also inevitable that the ‘Rehabilitation Revolution’ would free up prisons within the youth and women sectors, where the majority of inmates are serving shorter sentences, for reassignment to adult male use.

In conclusion, there certainly appears to be a lot of options on the table for Clarke and his team to consider but in reality there is only one route that will save him the sort of figures the Treasury has set him and that is to make people redundant. And, as the prison population continues to set new records week by week, the only way he can ultimately do that is by returning to the Tory penal policies of old and having fewer people passing through the judicial mincing machine. However, whatever the politician and civil servants in fact come up with by way of cost-cutting measures, we will have to wait for the publishing of the Green Paper outlining the conclusions of Clarke’s sentencing and rehabilitation policy review and a set of follow-up proposals for “a sustainable and cost-effective prison capacity strategy“ in light of the Spending Review settlement [36] that are expected some time in November. Things should be a lot clearer then but it remains to be seen as to whether the potential savings that Ken Clarke comes up with are any more real or palatable than the ones his predecessor Jack Straw came up with in recent years.

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