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.