Why not foundation courts?

Thinking about the political castration of Ken Clarke and the fact that not even the Treasury in its most R.G. Hawtrey-esque mood seems to be able to stop the expansion of the prison industry, it struck me that the political class’s attitude towards the public service known as justice is fundamentally different to its attitude to all the others, including defence and policing.

Since the mid-1980s and the rise of the New Public Management – possibly an even more pernicious intellectual phenomenon than New Classical economics – it’s been a universal establishment consensus, shared by all parties, that any public service can be improved by giving bits of it a pseudo-budget to spend in a pseudo-market. Playing at shops is the defining pattern language of post-80s public administration. (This chap wrote at the time that the whole thing was remarkably like the 1960s Kosygin reforms in the Soviet Union, and perhaps we can induce him to post it up on his blog!)

For example, the 1990s Tory government wanted “fundholder” GPs to buy hospital services in an NHS internal market. Now they want to do something similar again, but more, faster, and worse. All sorts of local government services were put through a similar process. Central government agencies were ordered to bill each other for services vital to their operations. The Ministry of Defence was ordered to pay the Treasury 6% a year of the value of all its capital assets, such as the Army’s tank park, reserve stocks of ammunition, uniforms, etc. As a result, the MOD sold as many vehicles as possible and had to buy them back expensively through Urgent Operational Requirements when they had to fight a war. Supposedly, some vehicles were sold off after Kosovo, re-bought for Afghanistan in 2001, sold again, re-bought for Iraq in 2003, sold again, and UORd in a panic in 2006.

(Off topic, if you’re either a reporter hunting a story or a dealer in secondhand military vehicles, watch closely what happens to the fleet acquired under UORs for Afghanistan in the next few months.)

But there is one public service where the internal market is unknown. I refer, of course, to criminal justice. For some reason, it is considered to be normal to let magistrates and judges dispense incarceration, one of the most expensive products of the state, as if it were as free as air. The Ministry of Justice is simply asked to predict-and-provide sufficient prisons, like the Department for Transport used to do with motorways. Like motorways, somehow, however hard the bulldozers and cranes are driven, it never seems to be enough, and the prison system operates in a state of permanent overcrowding. Interestingly, the overcrowding seems to prevent the rehabilitative services from working, thus contributing to the re-offending rate, and ensuring both the expansion of the prison industry and the maintenance of permanent overcrowding.

The new public managers bitch endlessly about “producer interests” – they mean minimum-wage hospital cleaners, but somehow never GPs – but you never hear a peep about our bloated and wasteful criminal justice system. In fact, now that we have private jails, this producer interest is vastly more powerful as it has access to the corporate lobbying system and a profit motive.

Clearly, the problem here is that the gatekeepers to the system – the courts – have no incentive to use taxpayers’ money wisely, as they face neither a budget constraint nor competition. There is a rhyme with the fact that a British Army company commander in Afghanistan has a budget for reconstruction of $4,000 a month, which he must account for meticulously to the Civil Secretariat to the Helmand Task Force, but in each section of ten riflemen under his command, at least one of them can spend $100,000 on destruction at any moment, by firing off a Javelin anti-tank missile, every time he goes outside the wire. As once the thing is fired, he no longer needs to tote the fucker any further, you can see that a lot more is spent on Javelin rounds than reconstruction, and indeed the task force was getting through 254 of them a month at one point.

But it’s not a precise match. The military do, indeed, have to worry about their resources, as do the police. Only the courts can dispense public money without limit.

What if we were to give every magistrates’ court a Single Offender Management Budget, out of which it could buy imprisonment, probation, community service, electronic tagging, etc in an internal market? This would make it obvious to the magistrate how much cheaper non-custodial interventions are than jail. It would force them to resist the temptation to jail everybody out of risk-aversion or political pressure. If a court was to start off the year handing down 16-month sentences for stealing a packet of fags, and end up in queer street by Christmas, well, that will teach them to waste taxpayers’ money.

In fact, we could go further. Foundation courts would be able to borrow, if necessary, to tide themselves over to the end of the year, although of course they would have to make efficiency gains next year to repay it. It would be possible for a foundation court to go bankrupt and close. This, of course, will drive up standards. Perhaps we could even introduce an element of choice, letting defendants choose which jurisdiction they are prosecuted in.

I am, of course, joking. But not entirely.


  1. This is completely wrong: ‘ There is a rhyme with the fact that a British Army company commander in Afghanistan has a budget for reconstruction of $4,000 a month, which he must account for meticulously to the Civil Secretariat to the Helmand Task Force, but in each section of ten riflemen under his command, at least one of them can spend $100,000 on destruction at any moment, by firing off a Javelin anti-tank missile, every time he goes outside the wire.’

    I took part in some very heavy fighting, and saw precisely one Javelin fired, once permission had been received on the radio net from the company commander. No other Javelins were fired by the units I served with. The restrictions on use of force out there are severe: the idea that any private soldier can just decide to fire off an anti-tank missile when he feels like it is a fantasy. If one tried it, he’d get filled in by his section NCO and charged by his commander. On the other hand, a guy I served with in the Irish Guards got an official commendation for holding his fire when under attack from the Taliban, a decision he made because his rounds might have hit nearby civilians.

    I never saw anybody in a rifle section carrying a Javelin on his back, and as I was patrolling up to three times a day in a six and a half month tour, I would have noticed such a thing. A Javelin weighs forty pounds, and a rifleman in Helmand will be carrying at least eighty pounds of other gear and usually more. The Javelins used to be mounted to the Jackals that would provide fire support. Again, it’s a fantasy to suppose that a soldier can fire off ammunition in order to lighten the weight he carries- it’s something I never saw, although I was in plenty of contacts. I used to worry that if I fired off too many rounds the first time they bumped us, I wouldn’t have enough if they came back for a second go, as they often did.

  2. danhardie

    Alex, which version of the blog do most people read now? Why not just stop posting to the less popular version and put a link to the current blog up at the top of the old one?

    Anyway, copied over from my comments on the other site:

    This is completely wrong: ‘ There is a rhyme with the fact that a British Army company commander in Afghanistan has a budget for reconstruction of $4,000 a month, which he must account for meticulously to the Civil Secretariat to the Helmand Task Force, but in each section of ten riflemen under his command, at least one of them can spend $100,000 on destruction at any moment, by firing off a Javelin anti-tank missile, every time he goes outside the wire.’

    I took part in some very heavy fighting, and saw precisely one Javelin fired, once permission had been received on the radio net from the company commander. No other Javelins were fired by the units I served with. The restrictions on use of force out there are severe: the idea that any private soldier can just decide to fire off an anti-tank missile when he feels like it is a fantasy. If one tried it, he’d get filled in by his section NCO and charged by his commander. On the other hand, a guy I served with in the Irish Guards got an official commendation for holding his fire when under attack from the Taliban, a decision he made because his rounds might have hit nearby civilians.

    I never saw anybody in a rifle section carrying a Javelin on his back, and as I was patrolling up to three times a day in a six and a half month tour, I would have noticed such a thing. A Javelin weighs forty pounds, and a rifleman in Helmand will be carrying at least eighty pounds of other gear and usually more. The Javelins used to be mounted to the Jackals that would provide fire support.

    Again, it’s a fantasy to suppose that a soldier can fire off ammunition in order to lighten the weight he carries- it’s something I never saw, although I was in plenty of contacts. I used to worry that if I fired off too many rounds the first time they bumped us, I wouldn’t have enough if they came back for a second go, as they often did. I suspect that most or all Javelins were fired either from the walls of bases or from vehicle mounts.

    The use of so much heavy ordnance in Afghan towns and villages was a grotesque failure, but it almost certainly didn’t happen for the reasons that Rupert Jones’s casual remarks imply. A lot of Javelins were fired for the same reason that a lot of 500lb bombs were dropped- there was a strategically mad decision to occupy a lot of villages and towns across Helmand with a tiny number of troops, who were subsequently besieged and would have been over-run if they hadn’t loosed off a lot of ordnance. Added to which, the mud walls of Afghan compounds are resistant to anything but a lot of high explosive. See, for treatments of the same subject actually based on detailed first-hand knowledge, Frank Ledwidge’s ‘Losing Small Wars’ and Jack Fairweather’s ‘A War of Choice’, which covers Afghanistan as well as Iraq.

  3. ajay

    The other thing is that if you get the budget allowance wrong on the generous side, then you’ll have a lot left over towards the end of the year, and you’ll get the situation where the office manager spends December buying lots and lots of stationery because if he doesn’t use the budget up it’ll be cut next year, except in this case it’s magistrates banging people up.

    Maybe you also need some sort of Incarceration Trading Scheme between different courts?




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