Book Review: Law,Insecurity and Risk Control: Neo-Liberal Governance and the Populist Revolt

Law, Insecurity and Risk Control is the latest in a number of books authored by John Pratt that apply a social theoretical perspective to the consideration of broad societal dynamics, and their relationship with penal policy. Law, Insecurity and Risk Control examines and explains the relationship between neo-liberal governance and what Pratt calls the ‘populist revolt’. It discusses – and indeed places central in its analytical discussion – the ‘security sanction’ (described in more detail below) and its role, as Pratt sees it, in seeking to shore up the increasingly shaky foundations of the neo-liberal order.

Pratt argues that since the 1980s, criminal law has seen dramatic changes, taking on a risk-prevention role. At the same time, risk has become increasingly central to criminal justice practice and policy more broadly. He argues that what we have seen is not the inexorable growth of state power per se, but a shift towards criminal law measures intended to offer ‘a form of limited protection by the state from risks that individuals cannot insure themselves against and which would otherwise cause irreparable harm’ (p. 7).

Pratt draws together material from five jurisdictions – the UK, the US, Australia, New Zealand and Canada – ‘to show how the phenomenon of the security sanction emerged out of the consequences of neo-liberal restructuring as a possibility to control new anxieties and insecurities this simultaneously generated’ (p. 12). But Pratt's account goes further: both in terms of arguing that there have been additional important developments in recent years that require us to re-orient our analytical narrative, and (relatedly) in terms of arguing that the populist revolt in particular has fundamentally changed the nature, and possible future prospects, of liberal democratic nation states.

The book develops the theoretical argument via a historical narrative structure; the chapters leading the reader from the post-World War Two era (‘Never Again’) to the present (‘The End’). Chapter 2 argues that the post-WWII period was one of a rejection of inequality and a desire to ensure sufficient welfare protection for all. An era of conformity, and also cast as one where preventive measures against ‘the dangerous’ (especially sex offenders) that had been advocated up to the 1930s fell away in the wake of the horrors of the World War.

Chapter 3 discusses the emergence of the neo-liberal political agenda from the 1970s, focusing in particular on the ways in which risk was ‘set free’ during this era. Chapter 4 explores the ‘celebration of risk’, that is, the valorising of enterprise and the free market, in a range of different areas including shopping, tourism, housing and lifestyle. Chapter 5 brings the reader to the 1980s, and the rising salience of the ‘dark side’ of risk: stock market crashes; growing fears about serious harms by sexual attacks, terrorism and so on; the growth of security architecture; the decline of community coherence; and growing concerns about ‘quality of life’ issues such as street begging.

Chapter 6 discusses the emergence of the ‘security sanction’, which for Pratt involves on the one hand ‘immobilisation in public space’ and on the other ‘immobilisation by extending the grasp of imprisonment’. The former involves (i) immobilising street people to protect quality of life in public space, (ii) immobilising those who put the human body at risk of sexual assault and (iii) immobilising potential terrorists. The latter encompasses the growth of indeterminate and indefinite forms of detention, and the increasingly important role of parole in making risk-based decisions on the delayed conditional release of a growing number of prisoners. He argues that, taken together, the measures served to ‘provide a kind of protective cocoon around those aspects and areas of everyday life that have come to have a special value during the neo-liberal era of governance’ (p. 223).

In Chapter 7, Pratt details the legitimacy challenges – both legal and political – faced by the security sanction and indeed the ‘neo-liberal system of governance that brought it into existence’ (p. 224). He queries how these transformations have been rationalised by legal authorities ‘even though criminal law is being pushed out towards this new, uncharted territory of prevention, far beyond its previous compass’ (p. 224). As regards legal legitimacy, Pratt points to a number of tactics deployed, including denial and depenalisation (e.g. that indefinite detention is not ‘really’ punishment), that such measures are only targeted at the ‘worst of the worst’, or that such measures are part of a legitimate ‘rebalancing’ of the criminal justice system. Pratt also points to a number of ways in which there may be (inherent?) limits to the legal legitimacy of the security sanction, be that self-recognition by relevant politicians or interventions by constitutional courts. As regards political legitimacy, Pratt argues that the security sanction comprises, and is justified by, ‘narrow but dramatic promises of security [allowing] governments to stand alongside their anxious citizens, reassuring them that they will build the strongest barriers of protection agains the risks they fear the most, and [governments] thereby reasserting their own authority in the process’ (p. 249).

Chapter 8 discusses ‘the revolt against uncertainty’: broadening out from penal populism to examine the emergence of populism as a dominant mode of governance tout court, which he casts as a direct result of the long-term consequences of ‘the ravages and great cracks … caused to the social fabric’ by neo-liberalism and the inability of the security sanction to maintain a sufficient level of social cohesion (p. 261). The historical moments highlighted are familiar: the 2008 global financial crisis; generalised insecurity; anti-immigrant rhetoric; Brexit; the rise of Trump. Pratt concludes that a ‘new mode of governance based on deceit, lies, anecdote rather than expert knowledge’ has taken hold, ‘amidst the trashing of democratic structures’ (p. 294). This leads us to Chapter 9, ‘The End’.

I now discuss further elements that I consider are open to probe and challenge, and which may open up further lines of dialogue and avenues for exploration.

In keeping with its Foucauldian roots, Pratt sets out a ‘history … of the way in which it has been possible to think in this way and to put the various forms the security sanction has taken into place’ (p. 12). A common observation as regards such works is that their powerful historical sweep can come at the cost of analytical engagement with issues of politics, agency and place (Beckett, 2001).

Here, Pratt's compelling (and thoroughly dispiriting) narrative at times speaks (my emphasis) of ‘societies … allowing themselves to be seduced by risk’ (p. 323), ‘our delusions’ (p. 9), and indeed of the security sanction itself as an agential force (p. 16). This led me to wonder at times precisely who was acting, and how. That is not to say that prominent political actors are not mentioned. But there is relatively little discussion of political contestation, specific actors within this, and alternative futures that were proposed and pursued by those contesting the dominant neo-liberal and populist trends that are Pratt's focus. There is a recognition of comparative differences between the nations discussed, and that there is ‘no uniformity’ to the processes set out (p. 12). Nevertheless, we risk being left with a linear historical account – an enlightenment-in-reverse – bereft of contingency.

To hone in on one example I know well, Pratt cites the English sentence of Imprisonment for Public Protection (IPP) as an exemplar of (one form of) the security sanction (p. 208). A more substantively political interrogation of its purported exemplary status within Pratt's framework poses some challenges. First, the security sanction is argued to stand alone, speaking neither of rehabilitation nor any other traditional penal purposes beyond incapacitation (p. 16). However, as regards the case of the IPP sentence this can be queried. The IPP sentence, for its advocates, was at heart a fusion of both rehabilitation and incapacitation (see Annison, 2015: Chapters 2–3).

Further, focusing on this particular legislative development points us in the direction of queries we might make about the argument that the security sanction is a direct (and inevitable?) consequence of the rise of neo-liberal politics, as are the ‘waste products’ (‘individuals, groups and all those considered to be dangerous’: p. 252) that it seeks to immobilise. In the case of the IPP sentence, it was informed and driven along by a range of elements: including the governing Labour party's accommodation of neo-liberal economic policies within its Third Way ideology, but also (complacent) views on the growing predictive capacity of risk technologies and alternative political ideologies, most centrally a robust, ‘traditional’ form of social democratic thought that reflects elements of left realist arguments of the 1970s (Annison, 2015: Chapter 4; Young, 1975). It was also informed in part by expert civil servants’ concerns about likely legal challenges, including under the European Convention on Human Rights, and a more general concern about British values. None of this necessarily obviates Pratt's analysis, but it does complicate it.

We can also note that, in England, there have been a series of missed opportunities for penal reform, which had at least the potential to re-shape (elements of) penal policy in a more liberal, perhaps even expert-informed, direction. This was first seen in 2010 with the appointment of veteran Conservative politician Ken Clarke as the Justice Secretary in the Conservative-Liberal Democrat coalition government of the time. Another opportunity then emerged in 2015, with the appointment of Michael Gove as Justice Secretary who moved to reverse some of the most populist, illiberal measures taken by his predecessor Chris Grayling, and also seemed poised to take further action on a number of other issues (including the long tail of the IPP sentence). His rhetoric, policies and proposed further actions were (cautiously) welcomed by various relevant experts including reform groups, lawyers and practitioners. The launch of the Brexit referendum halted this alternative possible future in its tracks (Jacobson and Hough, 2018). Nevertheless, these fateful moments remind us that we live in a world of possible futures (albeit some more likely than others).

I was also struck at times by the dual nature of the security sanction: as rhetoric, and as substance. Pratt speaks of ‘narrow but dramatic promises of security [allowing] governments to stand alongside their anxious citizens, reassuring them that they will build the strongest barriers of protection against the risks they fear the most, and thereby reasserting their own authority in the process’ (p. 249). And earlier, he speaks of the shift towards risk control measures in criminal law offering ‘a form of limited protection by the state from risks that individuals cannot insure themselves against and which would otherwise cause irreparable harm’ (p. 7). I would have been interested to see a more detailed unpicking of these different elements; both are clearly present but at times they appear closely bound (i.e. the security sanction does actually provide at least a measure of increased safety and loudly proclaims this), while at other points they diverge significantly, with it operating as merely an empty claim.

Law, Insecurity and Risk Control is avowedly a lament: we are at ‘The End’ of liberal democracy, or face this as an imminent and likely threat (Chapter 9). In this regard, there are echoes here of Reiner's recent lament for social democracy (Reiner, 2021). Pratt argues that there is a way out, if we are able to see respect for democratic institutions, for experts and expertise, re-asserted. But ‘if this is not so, then it truly is the end’ (p. 327).

However, this narrow conception of an escape route risks turning us away from productive debates about possible progressive futures for both the process and substance of political debate, including on the subject matter of penal policy (Farrall et al., 2016). An effort to re-insulate penal policy, experts barricaded against public pressures, is one way out of the current predicament. However, it is not clear that this is the most desirable, or indeed a sociologically plausible, way out of our ‘living nightmare’ (p. 26).

Pratt's Law, Insecurity and Risk Control is a systemic, bracing analysis of the way in which the politics of risk (and its inherent duality) has been turbo-charged by populist politics and underlying social and economic discontent. Its analysis and argument is in many ways stimulating and compelling. Pratt poses fundamental questions about the future of the (neo-)liberal state and the role of criminal law within it. As academics committed to progressive change, we must hope that the dystopian future Pratt warns we risk becoming entrapped in does not come to pass. Moreso, we must play an active role in ensuring it does not.