The rise of the shadow state?

After some delay the government finally published its plans for the future of the probation service in England and Wales. The title of the consultation document Transforming Justice – A Revolution in the Way we Manage Offenders (Ministry of Justice, 2013) is perhaps apt although not necessarily for the reasons intended. Substituting state responsibility for rehabilitation on the grounds of encouraging investment in order to generate private profits represents a fracture of the social contract upon which notions of rehabilitation and ultimately justice are grounded. If the proposals are implemented it will represent perhaps an unprecedented transformation of probation work in the United Kingdom with some £600 million worth of contracts (approximately 60 per cent of the entire probation budget) to be put out to tender. The probation service’s responsibilities will be confined to the core functions of supervising high-risk offenders and the provision of court reports. Of course this latest development is only the ‘tip of the iceberg’ in which public services are being re-arranged to favour private multinational corporations. Consider the following:

The UK now has the most privatized prison system in Europe, and although there are not as many private jails as in the United States the proportion of prisoners in private prisons is higher.

With some 105,000 new starts the electronic monitoring programme in England and Wales is the largest outside of the United States and accounts for approximately 80 per cent of the European market.

The UK Border agency has issued contracts worth £1.7 billion to the private sector.

West Midland and Surrey Police Forces have invited bids from G4S and other major security companies on behalf of all forces across England and Wales to take over the delivery of a wide range of services previously carried out by the police. The contract has a potential value of £1.5 billion over seven years, rising to a possible £3.5 billion depending on how many other forces get involved.

The 2011 value of the outsourced market for public services in the United Kingdom had an annual turnover of £80 billion and is estimated to rise to £140 billion by 2014.

In many respects the current transformation of public services such as probation represents a triumph of ideology over evidence. The decision to suspend the payment by results community pilots in order to speed up the wholesale implementation of this largely untested funding mechanism similarly suggests that the Justice Secretary clearly doesn’t want the inconvenience of having to wait for the outcome of what was in essence a sensible means of testing different models of service delivery. His confidence would seem to be derived from his previous experience as Minister for Work and Pensions where he oversaw the implementation of payment by results even though the preliminary findings suggest that some of the schemes involved produced worse results than doing nothing. Clearly, Ministerial promotions are not done on a payment by results basis!

Transforming Rehabilitation is short on detail regarding how risk will be managed across private and public bodies in a world of multiple providers. The government have attempted to put a spin the dangers 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. What is less clear though is how this overall increase in workload will be funded with no additional resources envisaged. As has been pointed out, similar plans were proposed by the previous Labour administration but were curtailed on grounds of cost (Newburn, 2013). Utilizing the potential of ex-offenders as peer mentors is a welcome but untested initiative on the scale envisaged. The deployment of peer mentors certainly has the potential to provide positive role models and in the right circumstances might be an appropriate means of engaging those still involved in criminal activity but a recent research study has highlighted the risks involved in adopting such an approach in that:

… the pool of individuals possessing the requisite experience, aptitude and skills may be small; high rates of peer turnover may compromise service delivery; the ambiguity of the role means that mentors are placed in a ‘grey area’ where they are neither service users nor professionals; and peer programmes require considerable maintenance and support (Fletcher and Batty, 2013).

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. It is worth remembering that the probation service’s lack of involvement with those sentenced to imprisonment of 12 months or less was not the result of wilful neglect by the organization but because 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 is at best disingenuous and betrays a fundamental ignorance of the services work. Surely, the logic of the Justice Secretary’s plans would be an expansion rather than a contraction of the probation service’s statutory responsibilities? As Richard Garside (2013) has remarked:

This appears more to be reform intended to shoehorn the probation service into the logic of commissioning, rather than one driven by a strategic view about how the probation service can best operate in the future. (www.ukjusticepolicyreview.org.uk)

The Justice Secretary has already conceded that the plans are unlikely to significantly impact on reoffending levels and is aiming for modest year-on-year reductions (something which the probation service in England and Wales has been achieving for the past decade). Somewhat ironically – given the wholesale plans to dismantle it – the probation service in England and Wales was the recipient of the British Quality Foundation Gold Medal for Excellence in 2012 and it was noted in the Houses of Parliament that no Probation Trust was deemed to be failing or in need of improvement (www.parliament.uk Early day motion 622). What evidence exists in support of privatization, such as in the prison system for example, is at best inconclusive and although they may be viewed by some as a short-term solution (in terms of savings to the public purse) such relationships inevitably tie the state into long-term and costly contracts. The current proposals envisage the commissioning of services on a national basis with delivery being located within 16 contract package areas. This is most likely to be undertaken by the contracts being held by a small number of private sector multinationals who will then subcontract service delivery to a complex mix of providers. As the Probation Chiefs Association (2013) has pointed out, the possibility of introducing national commissioning with multiple contracts within a timescale of 18 months is extremely questionable when the competition for Community Payback in London took over two years, and this of course was restricted to a single intervention in a single area. If they go ahead all the indications are that the contract packages will be over a lengthy period in order to reward private providers for their investment and performance (Webster, 2013). This has 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.

The withdrawal of public services will almost inevitably leave large gaps in service delivery which private companies are being encouraged to fill. It has been suggested that what we are witnessing is the emergence of a ‘shadow state’ of extremely powerful private providers (White, 2013). The government contends that ‘the old monopolies in the prison and probation system need to be opened up to create a more diverse range of suppliers of criminal justice services. However, just three companies – G4S, Serco and Sodexo) – dominate the management of private prisons in England and Wales. Clearly this is a big and profitable business. G4S operates in over 125 countries and employs 657,000 staff. Its turnover in 2011 was £7.5 billion. Rather than increasing competition as intended, they can lead to the emergence of private sector monopolies that are not unlike the systems they are expected to replace. As a report by Social Enterprise UK notes:

Some of the largest providers are supplying many government departments and public bodies, with many different kinds of service. They have complex stakes in many markets. It is difficult to imagine them being easily allowed to fail because taxpayers are now dependent on a few companies for a great many services. It is not easy to see who would quickly or easily fill the large gaps they have carved out across public services. (Social Enterprise UK, 2012: 10)

This ‘quiet revolution’ is taking place with very little public discussion or political dissent despite polls showing that over half of those interviewed thought it was unacceptable for private companies to run prison – and two-thirds had never heard of Serco. A larger number had heard of G4S, but only as a result of the adverse publicity resulting from their failure to provide adequate security for the 2012 London Olympics (Social Enterprises UK, 2012). Of course it could be argued that the public have equally been unaware of the work undertaken by the probation service in England and Wales and that this lack of knowledge has made it easier for the government to spin its proposals in Transforming Rehabilitation without fully addressing the risks involved. In the first article in this edition ‘Simultaneous prediction of punitive and rehabilitation orientated attitudes towards probation: An ecological approach’ by Rene Butter, Jo Hermans and and Anneke Menger, the authrs discuss the findings from their study of public attitudes towards probation in the Netherlands. Using a sophisticated methodology involving real-life situations, the authors sought to establish what accounts for individual differences in punitive and rehabilitative attitudes towards probation. Drawing on earlier research that suggested when forgiving attitudes are measured beside punitive ones that the former will prevail, the authors identified similar trends in relation to attitudes towards rehabilitation and punishment. They found that amongst those interviewed those individuals who had the most knowledge of probation were more inclined to favour rehabilitative approaches and hold less punitive attitudes. Young people with lower educational levels often held the most punitive attitudes. Similar findings have been found in studies conducted in England and Wales and this had led the probation service to do much more to engage with the public (Allen, 2008). However, Butter et al. suggest it is now more than ever vital that probation organizations should make more explicit to the public what they do and why it is the most effective way to prevent crime. One might also add that they should highlight the risks to public protection and increased reoffending if the proposals in Transforming Rehabilitation proceed as intended.

One of the most fundamental criticisms levelled against the current direction of travel is the lack of appreciation of the fluidity of risk. The government envisage that high risk offenders will continue to be managed by the probation service and medium and low risk offenders supervised by private and voluntary organizations but it provides little insight into how this will be operationalized in terms of individuals moving between these categories. In ‘How multi agency are multi-agency risk assessment committees’, Carla Reeves shows that in the existing arrangements for supervising high-risk offenders, relationships are not only shaped by cultural traditions but by the statutory responsibilities placed on different agencies. Based on her observations of the workings of twelve separate Multi-Agency Risk Assessment Committees (MARAC) in one probation area, the author found that although the relationships between statutory partners appeared to work well, the relationship between the statutory criminal justice sector and other agencies was more fragmented. Tensions arose from communication failures and resulted in a lack of engagement amongst those organizations with a duty (as opposed to a statutory responsibility) to cooperate. There is a real danger that the weaknesses of the current arrangements highlighted by the author here could well be magnified under the Transforming Rehabilitation proposals with the demarcation of risk management into different and artificial silos and delivered by a complex mix of providers making communication potentially more diffuse .

In ‘Stop a minute: making space for thinking in practice’, Tina Eadie, Bernadette Wilkinson and Sally Cherry highlight the dangers of over prescriptive and simplified solutions to complex problems and the importance of providing a space for practitioners to reflect upon their work. Drawing on the content of four seminars aimed at promoting thinking and debate about the professional task of supervision, the authors found that practitioners and managers continued to maintain a high level of enthusiasm and optimism and a strong commitment to give the best possible service to those they supervised and society in general. Whilst there is little evidence that those who deliver frontline services in the private sector have a different moral compass to their public sector counterparts (Crewe et al., 2011), a preoccupation with profit could have a detrimental impact upon performance resulting in a low morale and high turnover of staff if the experience of private prisons is anything to go by. The Justice Secretary has somewhat perversely argued that his proposals will enhance professionalism in probation work without any acknowledgement of the detrimental impact that they might have upon the confidence and morale of those currently working in the probation service.

Perhaps the ultimate failing of the current proposals is the lack of understanding of the complexity of supervision which cannot be reduced to an instrumental means of reducing reoffending at the lowest cost. Transforming Rehabilitation conveniently presents offenders as an homogeneous group, differentiated only by the category of risk assigned, and pays little attention to issues of diversity. This shortfall is reflected in the final two contributions to this edition. The prison environment can be extremely destructive but research suggests that parents are often motivated to use a period of imprisonment to reflect upon their relationships with their child and seek to improve their capacity as a parent (Collins et al, nd). In ‘Supporting imprisoned mothers and their children: A call for evidence’, Alannah Burgess and Catherine Flynn consider what progress has been made in terms of supporting families and providing childcare facilities in order to maintain family relationships during the prison sentence. The authors found that such approaches provided a potentially important means of addressing parenting needs but provision was somewhat uneven and there was a lack of long-term evaluation on their impact. As a result, it was unclear whether or not the women who participated in the programmes were putting into practice what they had learnt when released back into the community. It has been estimated that between 20 and 30 per cent of offenders have learning difficulties or learning disabilities which interfere with their ability to cope within the criminal justice system (Loucks, 2007). This issue is discussed in the final article in this edition, ‘A survey of existing program strategies for offenders with intellectual and developmental disabilities under correctional supervision in Pennsylvania’ by Miranda Hutchison, Don Hummer and Alese Wooditch. The authors found that this group of offenders were at a higher risk of reoffending because of their unidentified needs and lack of appropriate support and services available. Staff working with them often lack specialist training or are unfamiliar with the specific challenges involved.

The year 2013 marks the publication of the 60th volume of Probation Journal. Throughout its existence the journal has acted as a barometer, not only of probation practice, but has also chronicled the broader changes in which probation is located. As part of the Editors Choice collection (available at: prb.sagepub.com/) throughout the coming year a member of the Editorial Board will select an article from each respective decade and provide a short commentary on how the piece either influenced or reflected probation practice at that point in the service’s development. Whilst this will hopefully be a celebration of the past, it may well provide a testimony to what we stand to lose if the proposals contained in Transforming Rehabilitation are implemented.

Lol Burke