Sending David Gauke to deal with prisons has a small element of Richard Nixon going to China. The appointment by the current Labour justice secretary of a former Conservative justice secretary to chair a review into sentencing is emphatically a political decision. It is only by such a cross-party manoeuvre that the government can get the penal system out of the mess it is in.
And prisons policy, like drugs policy—to which it is more closely connected than many would admit—is in a mess. Indeed, one can even doubt that the bundle of practices, excuses, prejudices, expedients and devices that make up the general approach to incarceration in this country can even be called a policy. But if it is a policy then it is an expensive one which is in crisis.
Simply put, there is not enough capacity for all the people that are to be put in prison. One response to this problem is to build more and more prisons. But those prisons in turn will fill up, and are slow and expensive to build. There has to be a better way of dealing with the pressing problem of overpopulation.
Within the prisons there is no sense that they are doing much good, other than keeping certain individuals off the streets for a while. Many are brutalising environments where there is little rehabilitation. It is effectively a system for making bad people worse.
Yet other than the 80 or so prisoners with whole life orders, the presumption must be that the current prison population of 88,000 will be returned to those same streets at some point. The usual defence of prisons is that they take certain people out of circulation, but this is an exercise in delaying and worsening a problem.
Looking at it from the outside, the approach to sentencing in England and Wales makes little or no sense. But it is there, and public opinion is not going to easily change, and nor are media habits: the lazy headlines of “[x] walks free from court” when the culprit has a non-custodial sentence are not going to disappear.
The only way to tackle this problem is on a cross-party basis. The Labour party in particular does not want “law and order” to be used against it at an election. And, as with drugs policy, politicians fear the front pages of the newspapers when any sensible way forward is mooted.
This is, of course, depressing. Such reviews are a “contracting out” of policy formulation which should be done by departments answerable to parliament. Nothing that comes out of the Gauke review will be outside what the Ministry of Justice (MoJ) could have worked out for itself. Indeed, the ministry will be providing the staff to work on the review.
But our dysfunctional political system means that meaningful change often now requires the department/parliament model to be bypassed. In this way, such reviews are akin to the public inquiries which now provide accountability for administration and policy implementation (long) after the events in question, rather than in real time before parliament. The floor of the House of Commons is little more than a West End theatre.
This complaint, however, is to put political (and democratic) form over policy substance. The important thing is to get prisons policy right, and if the constitutional and media configuration of our polity means this can only be achieved by a cross-party approach then that is the approach that should be taken.
And that such changes will come via the Conservatives should not be a surprise. Over the last ten years there have been many false starts in prison reform by Tory justice ministers.
Before he was distracted by Brexit, Michael Gove showed a serious interest in prisons reform during his time as justice secretary in 2015-16, deftly showing off his interest in American conservative prison reformers such as Arthur Brooks and John Dilulio. Gove even looked as if he was bringing the media with him. “The Tories are right to focus on prison reform—it’s a classic conservative issue,” said the Spectator in support of Gove. “Oppressive prisons have been a costly failure,” said the Times. But when Gove went, those supportive articles seemed to go too.
In 2018 Rory Stewart similarly supported a more sensible approach to sentencing as a junior justice minister, though with far less media support. When he appeared before the Commons’ Justice Select Committee in 2018 to discuss possible improvements, the Daily Mail headline was: “‘A green light for criminals’: Anger as justice minister calls for most sentences of less than a year to be axed to cut jail population.”
More recently, the last Conservative justice secretary Alex Chalk put in place some of the preliminary work now being used by his Labour successor Shabana Mahmood. Perhaps had the Tories won the general election they would be appointing a Labour figure to head a similar sentencing review.
Nonetheless, it is striking that since the position of justice secretary was created in 2007—and given the prisons and probation remit previously held by the home secretary, together with the courts remit of the old Lord Chancellor’s Department—that no one in the role has been able to tackle the problem of sentencing and prisons policy head-on.
There have been hints of change from time to time, but not even having a dedicated cabinet minister responsible for courts, prisons and probation has prevented penal policy from becoming an expensive mess. The idea behind the creation of the MoJ was to have a “holistic” approach to such policies, but in practice the problems have continued.
And the courts are part of the problem. The guidelines of the Sentencing Council are rigidly applied by judges whose discretion in sentencing has been effectively removed by a stern court of appeal and the “undue leniency” regime, which enables the attorney general to apply to have a sentence they believe to be too lenient to be reviewed by appeal judges. It is not only politicians but also judges who are deterred from exploring lesser and alternative sentences.
But outside the courts and parliament, the public—goaded by the media—see escalating prison sentences as some sort of contest: 10 years, 15 years, 30 years, and so on, never seem enough.
Yet sentences by themselves provide little deterrence. Many people are deterred by the possibility of detection and conviction, which will cause personal ruin; while others are undeterred by either conviction or punishment. The emphasis on duration is more a way of not thinking about criminal justice policy than thinking about it.
And into this expensive and ineffective policy mess walks a former Conservative justice secretary at the invitation of the current Labour justice secretary. If there are to be improvements, then this is probably the way that they will come about. They cannot be achieved by a justice department answerable to parliament, the media and the electorate. The escape from the current predicament has to be by another means.
