Reflections on Probation and the Coalition Government: Austerity, 'Big Society' and Privatisation
Following the election in May 2010, there was a flurry of activity focused around the notion of delivering a rehabilitation revolution. The appointment of Kenneth Clarke as Justice Secretary suggested a more pragmatic approach to penal policy; however, as I noted in my Probation Journal editorial ‘Evolution or revolution’ (Burke 2011a), it seemed to me that the Coalition was simply quickening the pace of what New Labour had either put in place or aspired to before their electoral defeat. Clarke inherited the legislative framework of the Offender Management Act 2007, which had introduced Probation Trusts and laid the basis for the future relationship between the Secretary of State and the 35 trusts. Competition was clearly going to be the order of the day and in December 2010, plans for a ‘rehabilitation revolution’ were outlined in the form of the Green Paper, Breaking the Cycle (Ministry of Justice 2010a), and an accompanying Evidence Report (Ministry of Justice 2010b). The Justice Secretary’s oral statement to the Commons talked of bringing forward a revolutionary shift in the way rehabilitation is financed and delivered, based on more local and professional discretion, fewer targets and less proscription, greater competition and a system of Payment by Results (PBR) applied to all providers by 2015.
The proposals of the incoming government offered the possibility that there would be a different and more constructive approach to the governance of probation. As I noted in my editorial ‘For better or worse?’ (Burke 2010b, p. 229),
Governments have a tendency to centralize and look for more radical change when there are favourable economic conditions and healthy majorities, and decentralize and look to more local solutions in adverse economic conditions when the capacity for change is limited and there is a need for shared responsibility for the management of scarce resources.
However, I found it hard to envisage how reduced wastage alone, or increased competition, would be enough without negatively impacting on front-line staff. Commenting on these proposals in my editorial ‘For better or worse’, I cautioned that
The so called ‘rehabilitation revolution whereby the private and voluntary sectors will be paid by how many prisoners they rehabilitate looks suspiciously like the ideological imperatives of marketization masquerading as economic necessity. The notion that organizations will be paid by results assumes a simplistic causal relationship between intervention and outcome that ignores the complex social context of many individuals who find themselves within the criminal justice system. In reality it could instead lead to an even greater concentration on narrowly defined targets and stifle creative work and innovation. (Burke 2010a, p. 230)
Whilst economic fortunes had been radically transformed between the latter days of New Labour and the new government as a result of the 2008 global banking crisis, there was also the shroud of David Cameron’s Big Society hanging over the early days of the Coalition plans. As we elaborated in chapter 5 of Delivering Rehabilitation: The politics, governance and control of probation (Burke and Collett 2015), the so-called rehabilitation revolution, far from promoting or supporting Cameron’s vision, instead took advantage of economic circumstances to continue to push further the interests of a neoliberal economy. In my editorial ‘A runaway train’ (Burke 2011b), I argued that ‘It is perverse to talk about a “big society” whilst instigating public sector policies that undermine the social fabric upon which society is based’ (p. 110).
Two documents entitled Punishment and Reform - one dealing with Effective Probation Services (Ministry of Justice 2012a) and the other Effective Community Sentences (Ministry of Justice 2012b) - were published as part of the overall Transforming Rehabilitation consultation process. Essentially, Effective Probation Services re-emphasised the provisions of the Offender Management Act 2007 and asserted that ‘Competition is seen as a means of raising the quality of public services which should be financed by the taxpayer, but delivered by whoever is best suited to do so’ (Ministry of Justice 2012a, p. 3). A comprehensive PBR approach was envisaged for the future and Probation Trusts were to be developed as commissioners of services with separate local entities bidding for work in order to create a purchaser/provider split.
Taken together these consultations proposed a radical change to the delivery and oversight of community sentences. They further promoted the ideologically driven belief that splitting the service and outsourcing lower risk cases (irrespective of the dynamic nature of such risks) and other interventions would stimulate the market and encourage the private sector to bid for and achieve better results. Although there was some inevitable overlap, the second consultation paper Effective Community Sentences (Ministry of Justice 2012b) aimed to consult on the development of existing and future provision envisaged in the Legal Aid, Sentencing and Punishment of Offenders Bill (which received royal assent on 1 May 2012). As myself and Steve Collett argued in Delivering Rehabilitation: The politics, governance and control of probation (Burke and Collett 2015), ‘The consultation document, whilst containing some welcome sections on the treatment of women and the development of reparative and restorative justice measures, was largely a rehash and reaffirmation of the importance of credible community sentences, rigorously enforced to punish offenders as well as to reform them’ (p. 65). Whilst the paper reiterated the government’s position that community orders were not there to replace short-term custody (Ministry of Justice 2012b, para. 20), it reaffirmed a belief that they could reduce it if used effectively. It argued the case for a punitive element in every community order, the introduction of intensive community punishments (interestingly for those at the cusp of custody), more flexible use of fines and innovations in the deployment of electronic monitoring, and the piloting of the alcohol abstinence and monitoring requirement provided for within the Legal Aid, Sentencing and Punishment of Offenders Act.
In my editorial ‘Misunderstanding and misappreciation’ (Burke 2012), I questioned what I saw as a number of dubious assumptions that appeared to underpin the two documents. First, the consultation documents cited unacceptable reoffending rates as the justification for such sweeping reforms. It would be hard to argue that reoffending rates have been unacceptably high, with 60 % of released prisoners being reconvicted having served under 12 months (Ministry of Justice 2013b). However, it seemed somewhat perverse to blame the probation service, and use it as an excuse for further reform, for what is essentially a failure of the prison service, especially as this category of prisoner were released without statutory supervision. Moreover, according to the Ministry of Justice’s own figures, proven reoffending of those individuals receiving community orders in 2008 was 8.3 percentage points lower than for those who had served prison sentences of 12 months or less, even after controlling for differences in terms of offence type, criminal record and other significant characteristics (Ministry of Justice 2012b, p. 10). Second, whilst the consultation paper Punishment and Reform: Effective Community Sentences (Ministry of Justice 2012b) did not seek to replace short prison sentences with community penalties, it proposed a clear punitive element in every community order and the creation of an intensive punitive community disposal for those on the cusp of custody. As I argued in my editorial ‘Misunderstanding and misappreciation’, ‘Whilst punishment is of course a legitimate and expected response to criminality, by prioritizing the infliction of punishment, the proposals threaten to undermine the balance of sentencing outcomes and the underlying principles of proportionality and fairness in sentencing’ (Burke 2012, p. 198). The rationale for such a move appeared to be based on what was perceived to be a lack of confidence in community sentences amongst the general public. In Bauwens and Burke (2013) we considered this ‘search for legitimacy’ in both England and Wales and Belgium and how the legitimation processes of the previous 15 years had impacted upon probation practitioners in both jurisdictions.
In a contribution to an edited collection of essays which we entitled The devil in the detail: community sentences (Burke and McNeill 2013), Fergus McNeill and myself further considered the arguments and proposals contained within the two consultation papers. We explored the conditions under which, and mechanisms through which, community sentences might serve to ‘stem the flow’ of imprisonment. We argued that the emergence of what we termed ‘mass supervision’ (in the community) represented both opportunities and threats in terms of how they could come to be reconfigured and delivered in an increasingly marketised environment. Outlining what we saw as the practical and methodological challenges of implementing a PBR model of commission (see also ‘Payment by Results’: Some methodological issues and research challenges from the United Kingdom [Burke 2013a]) we argued that although PBR may be politically attractive on a superficial level it ultimately fails to address the deeper questions of penal politics, values and approaches on which progressive reform depends. This led us to explore what alternative narratives might be imagined for community sentences? Our contention was that making community orders more punitive in an attempt to match the damaging impact of imprisonment ‘was not only misguided but could undermine the legitimacy, without which securing compliance from those subject to community sentences, and even ultimately supporting their desistance from crime are jeopardised’ (Burke and McNeill 2013, p. 114). Instead we argued that more attention was needed to to identify what sorts of reparation and redemption signals could be sent to communities that might foster support for reintegration.
When Kenneth Clarke was replaced by Chris Grayling as Justice Secretary in September 2012, it was evident that the pace and ideological intent of the rehabilitation reforms would intensify given the former’s previous role in overseeing the implementation of a PBR commissioning model whilst he was responsible for the Department for Work and Pensions. January 2013 saw the publication of another consultation paper, entitled Transforming Rehabilitation: A Revolution in the Way we Manage Offenders (Ministry of Justice 2013a), that shaped the government’s final position encapsulated in Transforming Rehabilitation: A Strategy for Reform (Ministry of Justice 2013c). In the short time between the two documents and the earlier consultations there was a significant change in direction. Rather than holding a central role in the commissioning of services, probation would in effect become a residual public sector organisation dealing with the most difficult and dangerous cases. The remaining, which constituted about 70 % of probation’s workload, would be supervised by private sector organisations, in conjunction with those voluntary sector organisations who wished to form commercial alliances. Local Probation Trusts would disappear as services were commissioned on the basis of some 21 contract package areas. This simple description, of course, does not capture the complex web of relationships and partnerships that exist at the local level. These range from those built up over years of informal engagement and commissioned activity to meet local needs to partnerships enshrined in law and binding on local probation trusts (see Burke and Collett 2015, chapter 6, for a discussion of these developments). An initial attempt by the Ministry of Justice to clarify partnership arrangements under future structures (2013d) only highlighted the potential for wasteful duplication and the danger of blurred accountability and governance that had been the responsibility of the local Probation Trusts.
The Transforming Rehabilitation proposals were short on detail regarding how risk would be managed across private and public bodies in a world of multiple providers. The government attempted to put a spin on the risks involved in its proposals by presenting them as a means of providing a better service to those short-term prisoners who currently receive no statutory support on release. Similar plans had been proposed by the previous New Labour administration but were curtailed on grounds of cost (Newburn 2013). In my editorial ‘The rise of the shadow state’ (Burke 2013b), I argued that ‘Ultimately, it is difficult to understand the logic of fragmenting service delivery to the majority of those currently subject to statutory supervision under the guise of filling this gap in provision’ (p. 4), pointing out that the probation service’s lack of involvement with those sentenced to imprisonment of 12 months or less was not the result of a wilful neglect by the organisation but were the outcome of legislative changes brought about by a previous Conservative government in the 1991 Criminal Justice Act. Dismantling the probation service based on a rationale of unacceptable levels of reoffending amongst a group for which it has no statutory responsibility seemed to me to be ‘at best disingenuous and betrays a fundamental ignorance of the services work’ (p. 4). The contracts for running the CRCs were to be for between 8 and 10 years and as I noted in my editorial ‘Grayling’s hubris?’ this had ‘all the hallmarks of a “scorched earth” policy which a subsequent change of government would find difficult to untangle even if it were so inclined’ (Burke 2013c, p. 377).
The proposals contained in Transforming Rehabilitation were presented to parliament as part of the legislative framework of the 2013 Offender Rehabilitation Bill (subsequently proceeding to the 2013 Offender Rehabilitation Act). In a short piece for the British Society of Criminology (Burke 2013d), I outlined my objections to the plans. Whilst I welcomed the focus on improved resettlement outcomes through the extension of the licence and supervision requirements for short-term prisoners as being long overdue I contended that the potentially unintended consequences of this development had not been fully thought through, or financially accounted for, and could in turn have the unintended consequence of increasing the prison population.
In Burke (2015) I suggested that perhaps the ultimate failing of the proposals was the lack of understanding of the complexity of supervision which I argued cannot be reduced to an instrumental means of reducing reoffending at the lowest cost. Service users were presented as a homogeneous group, differentiated only by the category of risk assigned, and there was little acknowledgment of diversity issues. For example, there was a glaring lack of any specific policies for dealing with women despite the government’s acknowledgement in their Transforming Rehabilitation strategy of the widespread support among those consulted that services specifically tailored to women’s needs should be further developed and delivered. In this respect the government’s proposals contained all the elements of what Lorraine Gelsthorpe has insightfully described as a ‘curious mix of political posturing, populist punitiveness and measures to reduce costs’ (2012). The demise of the probation service in England and Wales as an integrated public service has been unedifying and has further widened the distance between the community and those who offend in order to maximise profit opportunities for a small number of powerful providers.