The debate has been influenced by
- The rise in crime, the perception that crime is becoming nastier, and an increase in the fear of crime, which together have had corrosive effect on public confidence and the way in which many people believe they have to live their lives.
- Changes in social and economic conditions which have caused, or contributed to, a loss of security in employment, a loss of stability in families and personal relationships, and increasing isolation and exclusion of those who have come to be seen as "failures" ;or who refuse or are unable to conform.
- Changes in the management of public services - somestimes described as the New Public Management - which have emphasised markets, competition, short-term contracts, measurement of results and individual responsibility rather than the more traditional vaues of equity, objectivity, partnership and security of tenure.
- Changing attitudes towards the functions of state, the role of government, the rights and responsibilities of citizenship, and the relationships between them.
- A self-centred, though entirely understandable, obsession with risk and personal protection, combined with impatience with the real or supposed failings of the criminal justice process and hostility towards those perceived as dangerous or threatening.
Governments and political parties have occasionally resisted, but have more often promoted, exploited, manipulated these influences, especially during the period when the Conservative Government had to overcome the divisions in its Party and regain the confidence of the country after the United Kingdom's withdrawal from the European Exchange Rate Mechanism and the signing of the Maastricht Treaty in the autumn of 1992 (Windlesham, 1996, Downes, 1997). The other political parties, the courts, the police and other criminal justice services have in their own ways shared and responded to the same feelings and attitudes.
One consequence of this combination of influences has been the emergence, and for a time the prevalence, of an "exclusive" view of society and human relationships. This view emphasises personal freedom and individual responsibility, but is inclined to disregard the influence of situations and circumstances. It distinguishes between a deserving majority who are self-reliant, law-abiding and entitled to benefit themselves and those around them without interference from others; and an undeserving, feckless welfare-dependent and often dangerous minority or under- class from whom they need to be protected. Human behaviour is thought to be motivated mainly by a desire for material gain or by fear of punishment or disgrace and not much by a sense of personal loyalty or social obligation.
A society which adopts this view will favour such measures as the elimination of undeserving claims for social benefits, the surveillance and reporting of suspicious persons or events; the carrying of identity cards; access to personal records, including criminal convictions, by those in authority; and the large scale use of imprisonment. It is likely to be unsure of itself, suspicious of strangers, hostile towards foreigners and fearful of those who do not conform to its assumption and stereotypes. It will be much concerned with personal protection and the assessment and avoidance of risk. Its decision-making processes will be cautious, closed and secretive. An example of "exclusive" thinking can be found in the work of the American writer Charles Murray (Murray, 1990, 1994). Andrew Rutherford gives an account of its potential consequences in his paper on Criminal Policy and the Eliminative Ideal (Rutherford 1997).
The contrasting "inclusive" view has received less prominence. It would recognise the capacity and will of individuals to change - to improve if they are given guidance, help and encouragement; to be damaged if they are abused or humiliated. It would emphasise respect for human dignity and personal identity, and a sense of public duty and social responsibility. It would look more towards putting things right for the future than to allocating blame and awarding punishment, although the latter might sometimes be part of the former. The duty to conform to society's or the community's standards would be seen as matched by the community's own obligation to support its vulnerable and disadvantaged members. Solutions to social problems or to crime would be sought more by inclusion within the community itself - among parents, in schools, by providing opportunities and hope for young people - than by punishment or exclusion from it. It would accept that authority has to be accountable and legitimate, and that respect for it has to be earned and justified. The "inclusive" view is likely to be characteristic of a society which is open and compassionate, which accommodates and respects diversity, and which has some confidence in the future. It resembles, to some extent, the notion of a "stakeholding" society put forward by Will Hutton and John Kay (Hutton, 1995; Kay, 1996). The language of "communities" which is often associated with it can however often be ambiguous; it can be used to imply either an inclusive or an exclusive approach - inclusive if it seeks to reform and integrate those who are troublesome or disruptive, exclusive if it seeks to remove them for the protection or benefit of others. The term needs to be used with care (Lacey and Zedner, 1995).
While the "exclusive" view of society and human relationships was becoming prevalent in political debate, the "New Public Management" was becoming established in public services, including the criminal justice system (Hood, 1991, Harden, 1992, Freedland, 1994, Raine and Willson, 1996). Examples include the adoption, or imposition, or targets and key performance indicators, performance-related pay, the contracting-out or privatisation of services or their transition to the status of executive agencies. Similar influences were at work in the United States, Australia, New Zealand and other countries (Osborne and Gaebler, 1992, Pusey, 1991).
A change from the attitudes, outlook and culture which had been characteristic of public services in the 1960s and 70s was undoubtedly needed. Public funds were too easy to obtain for some purposes, and too difficult for others. They were often spent with too little regard for the cost effectiveness of the service that was being provided. Too little attention was paid to the feelings, expectations and reactions of those for whom services were provided or who came into contact with them, including the victims of crime. Most professionals were conscientious and (often supremely) hard working as individuals, but collectively they could be secretive, complacent and obstructive (Young, 1982). The change from a culture of performing a function to one of achieving a result was one which many public servants welcomed, at least so long as they were results to which they could feel personally committed and they had some part in deciding what the results should be. New Public Management, and especially the change to agency status, had in some instances an invigorating effect, transforming a troubled organisation with low status and poor morale into a more dynamic, confident, and forward-looking enterprise.
The New Public Management and the reforms associated with it have often been described as if they were common sense, practical, and even inevitable in a world of global markets and constraints on resources, as uncontroversial and politically neutral. In fact they involve fundamental changes in public and public service values, attitudes and expectations. They have profound implications for public law, the role of state and the nature of its authority, and the rights and duties of citizenship, which are only now beginning to emerge (Foster and Plowden, 1996, Freedland, 1998). Health, education, employment and housing are treated as commodities to be purchased and traded on the most competitive available terms, not as obligations to be undertaken and still less rights to be protected by the state, provided by public services and enjoyed by the citizen. Citizens are defined as individual consumers of public services, rather than as people who share a sense of common interest or identity or who are joined by any sense of mutual obligation or trust. Public service is defined by the achievement of internal targets and performance indicators, or as the accurate performance of an internal process (perhaps accredited to a national or international standard such as ISO 9001) rather than by reference to any social or economic outcomes. The values of public service become those of managerial efficiency, to be achieved for its own sake and not in pursuit of any wider purpose or obligation. The state, or rather the political administration of the day, becomes increasingly powerful, centralised and remote, while divesting itself of many of its responsibilities towards its citizens and placing such responsibilities as remain in the hands of private or intermediate organisations with their own, often commercial or quasi-commercial, interests and objectives. The contracting-out of prisons is an obvious example.
A country in which the attitudes of social exclusion and New Public Management are dominant will not show much interest in the social causes of crime, in the conditions in which crime is likely to be committed, or in any responsibility which citizens or communities may have to prevent it. Responsibility for crime is placed firmly on criminals, either individually for the particular offences they have committed, or collectively as if they were a separate group who are outside normal or legitimate society. Unruly children, single parents, refugees, the mentally ill and social security claimants have all been described - or demonised - in this way. Dealing with crime and its consequences is a matter for the police, the courts and other statutory services, not for society or communities, and the obvious and proper method is by detection and punishment. Deterrence and incapacitation by imprisonment are the most effective means of prevention, and an indefinite rise in the prison population - by 50 per cent in five years, with further increases projected (Home Office 1998) - with its associated costs, can be accepted without serious question. Justice becomes a process to be accelerated and made more efficient, and more effective in maximising its outputs which are convictions and punishment.
Preventive work, to the extent that it takes place, is concentrated more on physical security ("target hardening") and surveillance (typically security cameras and other, sometimes more secret, devices) to increase rates of detection, than on measures which might affect the motivation to commit offences (for example opportunities for training, voluntary service, social activity or legitimate adventure and excitement). "Targetted" policing focusses on known previous offenders, sometimes with successful results in obtaining evidence or recovering stolen property, but with a risk of what may be seen as harrassment and resulting alienation. It raises important issues of accountability and legitimacy (JUSTICE, 1997). Private space is created in shopping malls and certain housing developments - often deliberately advertised as "exclusive" - and is guarded to prevent the admission of those who do not have the right personal appearance or the required forms of identification (Jones and Newburn 1998). For the probation service, "protecting the public", through the mechanical enforcement of orders and attempts to make them more "demanding", takes precedence over programmes to reform or integrate offenders themselves. Measures of this kind are generally welcomed as generating confidence and trust among those who are "included" but little attention is paid, or thought to be deserved, for those who are not.
In public services, the skills which seem to be most highly rewarded, and the values which seem to be most highly respected, are those of accountancy and financial management and of cutting costs. The disciplines of economics and accountancy are more highly regarded than those of social science, and management consultancy is more highly regarded than academic research. Financial procedures and quantified, internal measures of performance take precedence over those concerned with quality or social outcomes. Public service is not so much seen as a career or a long term commitment, but as an episode in an individual's personal advancement to be continued for as long as, but no longer than, it is the most financially rewarding option that is available.
The new Government faced a precarious situation when it took office in May, 1997. The previous Government had - rightly - encouraged people to expect more from its public services. But the previous Government's obsession with management and efficiency had led to an assumption that many of the issues facing the country could be dealt with simply by reorganising the relevant public services to make them more efficient and effective. The policy on health was the internal market, on education it was the local management of schools, on transport it was privatisation. In line with that assumption, it was supposed that improvements in the efficieny and organisation of the criminal justice process, especially if accompanied by greater severity of punishment, would provide an adequate answer to the problem of crime. That was a dangerous over-simplification, which over stated the capacity of the criminal justice process to prevent crime, encouraged the view that crime was "someone else's" problem, and distracted attention from the public's own responsibilities as citizens.
The new Government's approach to the problems of crime and justice, expressed for example in the Crime and Disorder Bill now before Parliament, is based on prevention and support for people in difficulty, combined with the coercion of those who do not comply and reform of the youth justice system, The Government recognises that problems of crime cannot be dealt with in isolation from wider questions of social and economic policy in areas such as employment, education, health and housing. All these are receiving attention in their own right, with some recognition that the solutions may also help to reduce crime. Through the Unit set up for that purpose, it is making a special effort to tackle some of the problems of social exclusion. It is not obsessed with conviction and punishment for their own sake or as the country's principal response to crime.
In matters relating to the management of public services, the Government is continuing, quite rightly, to insist on efficiency and effectiveness, and effectiveness is more often being defined in relation to final outcomes such as the prevention of re- offending than to internal processes. It is not proposing substantial change in procedures and structures such as performance indicators, agency status for the prison service or the contracting out of prisons, but it seems to be less concerned (for example in the health service) with markets, competition and short-term contracts. There seems to be less of a culture of insecurity and blame; the Government respects and is accessible to professional as well as public opinion; and it is interested in an evidence-based approach which takes account of academic research.
At the same time as the Government is paying attention to the preventive effects of its wider social policies, it is also developing more specific policies aimed at those at risk of offending, or thought to present a risk to others (Home Office 1997). They include some of the groups who have been demonised in the past - unruly children, irresponsible parents, misusers of drugs and those previously convicted of sexual offences. Many of its proposals are "inclusive" in the sense described earlier in this paper - the reparation and action plan orders, the approval for community (or family) conferencing and mentoring schemes, the emphasis on the principles of restoration, reintegration and responsibility, and the youth panels and "contracts" which are intended to give those principles practical effect.
Other proposals introduce a range of preventive orders - anti- social behaviour orders, drug treatment and testing orders, parenting orders - whose purpose is to prevent irresponsible and socially disruptive behaviour, initially by imposing various conditions or requirements, but backed up by severe penal sanctions for failure to comply. Concern has been expressed that those sanctions may be used, not exceptionally and as a last resort, but routinely and oppressively (Ashworth et al 1998), and in ways which criminalise larger numbers of vulnerable and especially young people for behaviour which is criminal only in the sense that it involves a breach of an order or condition. These and other proposals, such as the child safety order and local child curfews (for children under 10), and the new statutory provisions allowing children of 14, and perhaps eventually as young as 10, to be held in prison custody under a new Detention and Training Order, can be seen as implying that there is a separate, recalcitrant and potentially dangerous class of people for whom integration is not practicable and for whom the rest of society has to be protected. They are therefore "exclusive" in the sense previously indicated.
To characterise policies as "inclusive" or "exclusive" is not to commend or criticise them as such. Punitive or "exclusive" sanctions, including imprisonment must be available as a last resort. But the scale on which they are used, and the spirit and culture in which the measures are applied, will have a critical effect on their success or failure in terms of their eventual outcomes. A culture of punishment and exclusion, for example in the police or the youth court, could cause even the "inclusive" measures to be operated as instruments of punishment and so undermine the principles of restoration, reintegration and responsibility which the Government itself has set out.
The problems which the Government and the country have to tackle - like many other problems in the modern world - are intractible and complex. They need multiple, co-ordinated solutions which draw on different skills from diverse backgrounds, brought together in formations which share a sense of common purpose and accountability. Despite the efforts and experience of the last 15 yeas, it is still hard to achieve co-operation successfully on the ground. It is especially hard in circumstances of tight financial control and shortage of resources, or in a management - and policial - culture which has previously insisted on uniformity, competitition, short-term contracts, narrowly defined and quantified performance indicators, individual rather than collective responsibility, and effective discouragement to the taking of risks.
No-one should under-estimate the practical difficulties involved in making the new arrangements work successfully. They include the formation of new, inter-disciplinary youth offending teams to assess and supervise young people who are in trouble or at risk. The teams' composition, relationships and accountability will all need careful attention, in the pilot schemes which the Government has proposed and once they are fully in operation. The teams need leadership as well as management, and their members must be chosen as the best people for the job, not as those who can most easily be spared. They will need to relate to statutory and voluntary services; local government including elected members; courts; local businesses; local communities including minority ethnic groups; victims and their organsiations; central government; and the new National Youth Justice Board which will be appointed to supervise the arrangements as a whole. There will also be sensitive relationships, both within the teams and with offenders and their families. Many of the relationships will involve some degree of accountability, and will need suitable mechanisms for that purpose. Purchasing and funding arrangements which can provide a reasonable degree of continuity and confidence will be absolutely crucial. Programmes to support the new preventive orders must be of suitable quality, and the sanction of imprisonment - which is by definition exclusionary in its effect - must only be used exceptionally and as a last resort. Teams and those who work with them must look beyond preventive orders and punitive sanctions to the more positive opportunities for personal development, self-fulfilment and service to others which are part of a healthy civil society. All the new arrangements will need not only to be monitored in terms of internal performance measures and indicators, but also evaluated for their social outcomes and consequences. The latter requires external, high quality, research, for which the Youth Justice Board must have an adequate budget. Managing complexity and diversity on this scale is a challenging and exciting prospect, but it demands skills which have not been much valued or developed in recent years.
Programmes for crime and justice should be set in a wider context which includes the ideas and values of citizenship and civil society. The country is coming increasingly to realise that the world does not consist just of individuals on the one hand and the state and its institutions on the other. Questions of crime, and of social stability and social justice, are also the responsibility of civil society - that is to say, those associations, networks and relationships which are neither part of the mechanisms of the state nor run for commercial profit. Civil society includes the voluntary sector, but also the less formal associations which provide opportunities for personal development, service to others, and support in times of difficulty. They are what hold communities together, and they can make all the difference to the quality of national life. Ideas of civil society and citizenship have attracted increasing attention during the last few years, for example in the debates on stakeholding and communities and on relational and restorative justice, and in the present Government's programme of constitutional reform and its concern over social exclusion.
Citizenship has three elements - rights, responsibilities and a voice in the country's and the local community's decision-making processes. None of them should be pursued without regard for the other two. The notion of rights, including the rights of children, set out in the United Nations Convention on the Rights of the Child and those enacted in domestic legislation in the Children Act 1989, have been much criticised during the last few years. But the country should be thinking about how to clarify, interpret and apply the rights of citizenship in an inclusive spirit, and about how to balance them with responsibilities. It should not weaken or qualify them, still less remove them altogether, either generally or from "undeserving" individuals in the supposed interests of punishment or social control.
Responsibilities seem to be thought of mostly as "other peoples'" responsibilities to conform to "our" standards and comply with "our" requirements, including those requirements whose purpose is to protect our own safety and comfort. The notion of responsibilities is "exclusive" when it is used in this sense. There has been less emphasis on the equally important and more "inclusive" responsibilities of citizens to promote and protect the interests of the nation's children, or more generaly to support or care for those who are vulnerable, disadvantaged or at risk of being excluded, whether they do so by their direct efforts as volunteers, by supporting charities, or through the payment of taxes. That emphasis should be revived, as Alun Michael, Minister of State at the Home Office, has argued (Michael 1998).
A voice in the decision-making process, and confidence that it will be heard, is what gives the institutions of state their legitimacy and authority. Legitimacy is closely linked with public accountability. It was once left to the democractic process, supplemented by the subtle workings of the English establishment and the less subtle influence of representative bodies such as trade unions. All these have lost authority and credibility, and there is now an array of new procedures which include the Citizen's Charter, focus groups, regulators, and various forms of inspection, audit and ad hoc consultation. Most of those procedures are remote from the ordinary concerns of citizens, and inaccessible to all but a privileged few. Citizens need the resources of civil society if their voices are to be heard and made effective.
A programme to put these ideas and values into practical effect might establish and build on a number of principles. Some of them - accountability, legality, openness, procedural fairness, equality of opportunity, treatment and impact - would be those which apply to public service generally and would resemble some of the seven principles of public life which the Nolan Committee, established to deal with problems of corruption and lack of integrity, set out in its first report (Nolan 1995). Others would be more specific to crime and justice. For example
- Measures to prevent crime and reduce re-offending are matters for civil society as well as the state. They should emphasise personal and social responsibiity, personal development, service to others, and legitimate opportunities for adventure as well as punishment and social control.
- They should be judged by an evaluation of their outcomes and of the fairness and integrity of their procedures, as well as by monitoring their quantified inputs, outputs and performance indicators.
- Punishment, when it is needed, should never be disproportionate to the seriousness of the offence - to the harm caused and the culpability of the offender. It should wherever possible be constructive and restorative rather than disabling or exclusionary, and it should involve the minimum possible interference with the rights and responsibilities of citizenship.
- Condemnation should be focussed on the offences which have been committed and the harm they have caused. Offenders, or criminals, are still entitled to their dignity and respect as people and citizens, and should not be treated as a class apart.
- Offenders, victims and communities are all entitled to be heard, within an understood framework of civil society and civic responsibility.
The Government has recently adopted a similar approach in its proposals for Welfare Reform (Department of Social Security, 1998).
Principles of this kind might eventually be enacted in legislation. In a quite different field - fiscal stability - the Gover nment has itself proposed a statutory code of principles (HM Treasury 1997), although such a code would be a significant departure from the British legislative tradition. It would be interesting to reflect on the practical, and consitutitional, effect which statutory principles might have; and on whether even non-statutory principles might come to have some status in public law. That might be an interesting subject for discussion with lawyers from different legal traditions, but it is probably for another occasion.
In the meantime, it would be re-assuring to think that the success of the country's programme for crime and justice would come to be measured by the extent to which it conformed to principles of this kind.
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