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New Guests in the Corridors of Power : the decline of the liberal élite and the forging of a new penal consensus

Emma Bell
p. 145-166

Résumé

For much of the post-war period, penal policy was developed by a small, liberal élite. In recent years, however, this élite has been increasingly discredited and largely ejected from the corridors of power. Consequently, it has been alleged that policy-making has moved outside the traditional corridors and into the popular domain. This article will seek to determine the validity of such allegations via an analysis of the principle actors in New Labour’s penal policy-making process.

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Texte intégral

Introduction

  • 1   Blair, Tony, Speech on the launch of the new five-year crime strategy, A new consensus on law and (...)

1It is often suggested that contemporary British penal policy has become highly populist in nature in the sense that it is seen as providing knee-jerk policy responses to public concerns and responsible for the inexorable rise in the UK prison population in recent years, despite a corresponding decline in the crime rate. Some critics and New Labour itself have claimed that the Blair government has consistently appealed to the popular over the heads of an élite cadre of policy experts situated within or with close links to the Home Office. New Labour has repeatedly justified the increasing harshness of policy in this domain by the perceived need to respond to, or at least to be seen to be responding to, the demands of “the decent, law-abiding majority”1. The aim of this paper will be to analyse the validity of these claims : first, by examining whether the old ‘experts’ have really been side-tracked with regard to the penal policy-making process ; and, secondly, whether the policy-making process has genuinely moved into the public domain and outside the traditional corridors of power.

The rise of the liberal élite: forging the post-war criminological consensus

  • 2   Ryan, Mick, “Engaging with punitive attitudes toward crime and punishment. Some strategic lessons (...)
  • 3   Ryan, Mick, Penal Policy and Political Culture in England and Wales, Winchester, Waterside Press, (...)
  • 4   Radzinowicz, Leon and Hood, Roger, The Emergence of Penal Policy in Victorian and Edwardian Engla (...)
  • 5   Webb, Sidney and Webb, Beatrice, with Shaw, Bernard, English Prisons Under Local Government, Lond (...)
  • 6   The Prison Commission, created by the Prisons Act 1877, was responsible for the entire prison sys (...)
  • 7   Fox, Lionel W., The English Prison and Borstal Systems, London, Routledge & Keegan Paul, 1952, pp (...)
  • 8   Morgan, Rod, Formulating Penal Policy : The Future of the Advisory Council on the Penal System, L (...)
  • 9   Ibid.

2It would certainly seem that there has been a profound change in the way in which penal policy is formulated in the UK. According to British criminologist, Mick Ryan, there has been a move away from a “deferential”, “top-down policy-making process”2 in which control “was in the hands of a relatively small, male metropolitan elite”3 towards a more populist policy-making process in which the old ‘experts’ have been side-tracked. Indeed, from the development of the modern prison in the 19th century up until the 1970s, penal policy, like other policy sectors such as education, was increasingly considered as a matter to be entrusted to the state. Following various attempts to obtain state control over the prison system, via, for example, the construction of the first national prison in 1816 (Millbank), the entire system was eventually nationalised in 1877 and in 1898 the Prisons Act increased the discretionary powers of the Home Office4, effectively excluding external influences from the policy-making process. The Webbs, writing about the last quarter of the 19th Century noted, “A great darkness shrouded the whole prison system”5. Even if Sir Lionel Fox, the head of the Prison Commission6, writing in 1952, asserted that “…it must be said flatly that when such assertions are made today they are made without reference to the facts”7, penal policy still remained an issue for a small cadre of elites, notably Home Office officials and a carefully selected circle of academic criminologists. The Criminal Justice Act of 1948 had provided that the Secretary of State might use government money to fund criminological research and by 1949 a research strategy had been established between the Home Office and ten universities8. In 1959 the Cambridge Institute of Criminology was set up, followed by the Home Office Research Unit in 19679.

  • 10   Ryan, Mick, Penal Policy and Political Culture, op. cit., p. 19.
  • 11   Loader, Ian, “Fall of the ‘Platonic Guardians’ : Liberalism, Criminology and Political Responses (...)
  • 12   Ryan, Mick, Penal Policy and Political Culture, op. cit., p. 18.

3Penal pressure groups were frequently consulted, such as the Howard League for Penal Reform, described as being in the 1950s and 1960s “a small executive committee of the great and the good”10. Various advisory bodies were also established, such as the Advisory Council on the Treatment of Offenders (1944-1964), the Royal Commission on the Penal System (1966-68) and, latterly, the Advisory Council on the Penal system (1966-1980). There was extremely close contact maintained until at least the end of the 1970s between these various groups and the Home Office, via both formal and informal processes (e.g. at professional gatherings and conferences or at the Whitehall luncheon club). This reflected a corporatist way of doing business that privileged expert opinion in the policy-making process11. It seems that the closeness of the penal policy-making circle and its considerable homogeneity of opinion were aided by the fact that many of these groupings had overlapping membership12.

  • 13   Morgan, Rod,, op. cit., p. 2.
  • 14   Ryan, Mick, Penal Policy and Political Culture, op. cit., p. 14.
  • 15 Ibid., p. 16.
  • 16   The term was coined by a retired Home Office official, cited by Loader, Ian, op. cit., p. 563.
  • 17 Ibid., p. 564.
  • 18 Ibid., p. 565.

4The reverence accorded to expert opinion in this period was undoubtedly also encouraged by the new social sciences which optimistically believed that virtually all social problems, including that of criminality, could be cured13. Faith in the rehabilitative ideal was at its zenith, the majority of criminologists and, consequently, Home Office officials, believing that what offenders needed was welfare support rather than punishment14. The liberal élite saw itself as a barrier to a more punitive public15, as “Platonic guardians”16, whose role was to respond to crime and public emotion about crime in a ‘civilised’ and measured way, in other words, to “constrain the temptations of the rulers and keep on a tight leash the untutored passions of the ruled”17. Rehabilitation was accepted as a means of realising these objectives by first, providing a humanizing rationale to imprisonment and, secondly, because of its purported capacity to re-socialise offenders and thus contribute to a wider civilising purpose18.

  • 19   Martinson, Robert, “What Works ? Questions and Answers About Prison Reform”, The Public Interest, (...)
  • 20   Community service and the deferred sentence were adopted by ss.15-19 and s.22 of the CJA 1972.
  • 21   Morgan, Rod, op. cit., p. 10. Ryan, Mick, The Acceptable Pressure Group : Inequality in the penal (...)
  • 22   Thoresby, Robert, “The Criminal Justice Act 1972”, The Modern Law Review, 1973, p. 420.

5In the 1970s, the rehabilitative ideal came under attack from both left and right-wing critics. Those on the left considered it to be illiberal on account of its coercive attempts to change people against their will. The right criticised it for denying personal responsibility. Then, in 1974, the American, Robert Martinson, declared that “nothing works” with regard to the treatment and rehabilitation of offenders19. Consequently, the elite’s focus shifted from imprisonment to policies which sought to reduce the use of custody, such as the introduction of community service, the suspended sentence and the deferred sentence. However, although these proposals received legislative expression20, many were made more punitive than had originally been intended21. It seems that the new provisions failed to reduce the numbers of people sent to custody : on the contrary, it was believed that they were actually contributing to a rise in the prison population. It was claimed that the suspended sentence, for example, was being applied to offenders who would not previously have been imprisoned22.

  • 23   Morgan, Rod, op. cit., p. 12.
  • 24   Downes, David and Morgan, Rod, “Dumping the ‘Hostages to Fortune’ ? The Politics of Law and Order (...)
  • 25  Elcock, Howard, “Law, Order and the Labour Party”, in Norton, Philip (ed.), Law and Order and Brit (...)
  • 26   In 1979 the daily average prison population stood at 42,220, compared to 39,820 in 1975. It conti (...)
  • 27 Ibid., p. 64.
  • 28   Faulkner, David, Darkness and Light : Justice, Crime and Management for Today, Howard League, 199 (...)

6The fact that policy in practice often turned out to be tougher than the pressure groups and advisory committees had intended has been taken as proof that their influence was in fact already limited in the post-war period. Morgan concluded in 1979 that the “ACPS [Advisory Council on the Penal System] has been held at arms length from Prison Department day-to-day affairs”23. However, even if their liberal ideas were not always applied in practice, it would seem that this was due more to fierce resistance from judges and prison officials determined to protect their professional independence from executive interference rather than symptomatic of any decline in their influence within the Home Office and Cabinet itself. It seems this situation was allowed to prevail because the principle of bipartisanship – otherwise known as the separation of powers – was generally respected throughout the period : once laws were enacted, it was considered that their enforcement was the sole preserve of the police and the judiciary24. It may be thought that once the Conservative government swept to power on a law and order ticket in 1979, judicial severity would have been encouraged in preference to more lenient policies advocated by the liberal élite. However, this was manifestly not the case. Despite the official ‘tough’ rhetoric, Home Secretary William Whitelaw (1979-1983) repeatedly exhorted judges to reduce the length of prison sentences or to favour alternatives to custody, yet his appeals were largely ignored, despite support from more senior judges.25 He was undoubtedly influenced by pragmatic concerns, notably the rising prison population26. In principle, it seemed he had no qualms about sending offenders to prison, given his decision to launch the largest prison building programmes of the 20th century in 198227. Yet, he, along with his successors, at least until the arrival of Kenneth Clarke as Home Secretary in 1992, continued to consult the liberal elite on major policy issues in the penal field. This was evidenced by the fact that the government resisted demands to reintroduce hanging, despite the fact that Thatcher herself and the majority of public opinion was in favour of it. In addition, in spite of the fact that the Advisory Council on the Penal System had been abolished in 1980, David Falkner, Deputy-under-secretary at the Home Office with responsibility for criminal policy from 1982-1990, has claimed that the Criminal Justice Acts of 1982 and 1988 adopted proposals regarding sentencing practice that had already been put forward by the Advisory Council in 197428. Downes and Morgan have spoken of the considerable influence which Faulkner – a recognised member of the old elite – continued to exercise under the Thatcher government, success measured by the fall in the prison population from 50,000 in 1987-8 to 42,500 in 1991 :

  • 29   Downes, David and Morgan, Rod, “The British General Election 2001 : The centre right consensus”, (...)

Faulkner… was given an unusually free hand to develop criminal justice and penal policy afresh. Drawing on the work of penal reform pressure groups, academic criminology and in-house research, he fashioned a programme for decarceration which, over several years, was widely canvassed and to some extent ‘sold’ to the judiciary, partly on the basis of successful developments in community alternatives to custody for young offenders from the early 1980s.29

  • 30   Home Office, Crime, Justice and Protecting the Public,Cm 965, London, HMSO, 1990, para.2.7, p. 6.

7 The Criminal Justice Act 1991 was undoubtedly the end-result of such a policy process. The White Paper leading up to the Act, Crime, Justice and Protecting the Public, had expressly noted that prison “can be an expensive way of making bad people worse”30 and set out to put in place a policy of penal bifurcation whereby more minor offenders would be henceforth diverted from custody whilst more serious offenders would continue to receive custodial sentences. That an Act with such a strongly decarcerative thrust could have been enacted, in spite of the tough rhetoric which emanated from government on penal matters, is testimony to the formidable power of influence of the ‘Platonic guardians’.

Discrediting the experts

  • 31   Conservative Party, Election Manifesto 1979.
  • 32   Thatcher, Margaret, Speech to Conservative Party Conference : Confrontation with Reality, 14 Octo (...)

8 Despite the undeniable success of the liberal elite in influencing penal policy throughout the Thatcher years, it was during this same period that the ground was already being prepared for their downfall. In 1979, the Conservative Party manifesto promised to tackle “the growing disrespect for the rule of law” which had been “undermined” by Labour, both in government and in opposition31. This constituted not just an attack on the Labour Party but also on the traditional liberal elite who, it was claimed, had ignored the interests of ordinary people. Significantly, Margaret Thatcher declared that demands to ‘get tough’ on law and order came directly from the people : in a 1977 interview she claimed, “People have asked me whether I'm going to make the fight against crime an issue at the next election. No, I am not going to make it an issue, it's the people of Britain who are going to make it an issue”32. Hence, toughness has often been taken as being synonymous with the popular.

  • 33   The Labour Party, Election Manifesto 1979 : The Labour Way is the Better Way.
  • 34   Thatcher, Margaret, Speech to Conservative Party Conference, 14 October 1988.

9Being ‘soft’ on crime, on the other hand, is seen as conflicting with the common sense of the people. In focusing on social deprivation as a cause of crime, as Labour had done in its 1979 election manifesto33, liberal criminologists laid themselves open to charges that they were trying to excuse the criminal whilst blaming the victim. Indeed, Thatcher claimed that “there’s a breed of left-wing politicians who excuse violence on the grounds that it’s not the criminal who is guilty – but the rest of us”34. In this way, the intellectual expert along with the post-war left-wing consensus on crime which he supported was discredited.

  • 35   Cited by Ashworth, Andrew and Hough, Michael, “Sentencing and the Climate of Opinion”, Criminal L (...)

10The 1991 Criminal Justice Act may be regarded as the last stand of the traditional intellectual penal elite. By the time Thatcher resigned from government, it seemed that populist rhetoric had begun to have practical effects on the policy-making process. Despite the best intentions of the drafters of the 1991 Act, it manifestly failed to achieve the desired drop in the prison population, which quickly started to rise again, falling only briefly and temporarily at the end of 1992 and in the middle of 1993. As ever, the judges interpreted the broadly-drafted Act in a punitive manner. The Act had firmly entrenched the principle of proportionality in sentencing, stipulating that punishment must be determined according to the relative seriousness of the offence. Yet, the Court of Appeal interpreted this principle in an undeniably severe way, justifying its actions by reference to the current punitive climate of public opinion. In the case of R v Keogh (1994), the Court of Appeal ruled that a defendant found guilty of having stolen goods worth £35 (50€) from a hardware store deserved to be sentenced to a custodial sentence for a period of one month. The judge was applying the principle developed in the case of R v Cox a year earlier in which Lord Taylor said that the court should ask itself whether it is dealing with the type of crime that “would make right-thinking members of the public, knowing all the facts, feel that justice had not been done by the passing of any sentence other than a custodial one”35.

11As we have seen, judicial severity running contrary to legislative intention is nothing new, but this time the government followed the judges. Instead of calming public opinion, as the ‘Platonic guardians’ had sought to do, the government whipped it up and sought to respond to what it perceived to be popular opinion over the heads of the traditional experts. The prime example of this is the Major government’s enactment of another Criminal Justice Act in 1993 which rejected the principles of penal parsimony and proportionality laid down in the 1991 Act by effectively punishing an offender not only for his present offence, but also for any past offence related to it. The shift in policy coincided with the appointment of Tony Blair as shadow Home Secretary in 1992 and then the appointment of Michael Howard as Home Secretary in 1993. As part of his project for modernising the Labour Party, Blair sought short-term electoral advantage by attempting to shed the image of the Labour Party as being ‘soft on crime’ and ‘out of touch’ with the sentiments of its electorate. He thus embarked upon a political point-scoring exercise with Howard on which party could prove itself to be toughest on crime. The overt politicisation of penal policy and the corresponding rise in importance of public opinion corresponded with a parallel decline in importance of expert opinion which was increasingly considered to be detached from popular sentiment.

  • 36   Blair, Tony, Speech on the launch of the new five-year crime strategy, op. cit.
  • 37   Hall, Stuart, “The Great Moving Nowhere Show”, Marxism Today, November/December 1998, p. 14.
  • 38   White, Michael, “Straw attacks woolly liberals”, The Guardian, 10 January 2000.
  • 39   Cited by Loader, Ian, op. cit., p. 580.

12New Labour has gone so far as to show open disdain for the pervious penal policy-making process and for all those who were party to it. Announcing the publication of the third 5-year crime strategy in 2004, Blair said, “Today’s strategy… marks the end of the 1960s liberal, social consensus on law and order”, claming that “people have had enough” of the part of the 1960s consensus that focussed on the offender’s rights and encouraged people to take “the freedom without the responsibility”36. He has openly criticised ‘the intellectuals’, or as he prefers to call them, “the chattering classes” or “the sneer squad”37, while Jack Straw, when Home Secretary, famously attacked the “woolly-minded liberalism” of those who opposed his proposed changes to the right to jury trial38. A former civil servant has claimed that academic intervention into politics “is just not really listened to nor really taken seriously”39. Indeed, the majority of academic criminological opinion is strongly opposed to many aspects of New Labour penal policy, from ASBOs to anti-terrorism legislation, yet the government has shown no signs of making a less punitive U-turn. Although many pressure groups for penal reform regularly submit detailed responses to consultative documents, it would appear that their advice is rarely heeded. These consultation exercises would consequently appear to be little more than cosmetic.

13The only truly formidable opposition to government penal policy over the past decade has come from the House of Lords, where the liberal élite still seems to hold some influence. For instance, the Criminal Justice (Mode of Trial) Bill which attempted to limit the right of a defendant in ‘either-way’ criminal cases to choose trial by jury was rejected by the House of Lords. The Lords have also mounted considerable opposition against the succession of anti-terrorism bills that have been introduced in the wake of 9/11. In their judicial capacity, they have ruled that the government’s policy of detaining foreign terrorism suspects indefinitely without trial under the Anti-Terrorism, Crime and Security Act 2001 breaches human rights law. Yet, much punitive legislation has survived both scrutiny in the House of Lords and opposition from the various pressure groups for penal reform, suggesting that the power of the old elite has been substantially weakened.

Forging the new consensus

  • 40   Loader, Ian, op. cit., p. 581.
  • 41   Ibid.
  • 42   Tonry, Michael, Punishment and Politics : Evidence and Emulation in the Making of English Crime C (...)
  • 43   Gould, Philip, The Unfinished Revolution : How the Modernisers Saved the Labour Party, London, Ab (...)

14 Since the early 1990s, there has been a profound change in the policy-making culture prevailing in the Home Office, from what British criminologist Ian Loader has called a ‘culture of deliberation’ to a ‘culture of impatience’40. He describes this latter as “a political culture dominated by actors preoccupied with being seen to react immediately and resolutely to mass-mediated, emotionally charged and urgently pressed public concerns about crime and disorder (or at least to a particular, strategic reading of those concerns)”41. It is a culture which expects ministers to be seen to be responding to those concerns in a measurable way, i.e. through audits, meeting KPIs (Key Performance Indicators) and, most importantly, via the formulation of headline-grabbing policies such as ASBOs. In such a climate, professional discretion is limited and policy-making highly centralised, hindering the development of independent research programmes. For policy inspiration, it seems that successive New Labour governments have turned to the focus group rather than the criminal justice professional42. The use of the focus group has been extremely important to New Labour, conferring popular legitimacy on its policies. It has been presented as “an important part of the democratic process : part of a necessary dialogue between politicians and people, part of a new approach to politics”43. This purported move from representative to direct democracy has been an important way of delegitimising intellectual opinion whilst simultaneously legimitising the popular.

  • 44   White, Michael and Wintour, Patrick, “Clarke breaks silence with attack on Reid”, The Guardian, 2 (...)
  • 45   Leader, “We demand real justice”, The Sun.
  • 46   Reid, John, Hansard Debates, 14 June 2006, col. 763.
  • 47   Travis, Alan, “Courts shakeup to end automatic early release”, The Guardian, 6 November 2006.

15Yet, can it be said that under New Labour the penal policy-making process itself has moved outside the traditional corridors of power and into the popular domain? At first glimpse, it may seem so, at least if one takes the tabloid press as an indicator of popular opinion. On not a few occasions, the government has responded directly to tabloid concerns. For example, in June 2006, the former Home Secretary Charles Clarke, criticised the current post-holder John Reid for being “too media-led”44. Clarke was condemning the government’s reaction to the latest public outcry over ‘lenient’ sentences that erupted in June of last year. The case of Craig Sweeney, a convicted paedophile who abducted and sexually abused a three-year-old girl, made the headlines across the British media, which reported that he had been sentenced to a mere 5 years’ imprisonment. However, in reality, Sweeney was given an automatic life sentence under the terms of the Criminal Justice Act 2003 and may only be ‘considered’ for parole after having served 5 years and 108 days of his sentence. This means that if he is considered to pose a serious risk of harm to the public, he could spend the rest of his days in prison and, even if he is released, he will be under licence until he has served the entirety of his sentence. Nevertheless, The Sun used his case to pursue its campaign for what it termed “real justice”, demanding that “judges who go easy on killers, rapists, child sex abusers and other violent criminals” be sacked andpublishing the photos of 10 judges, accompanied by details of their “soft sentences”45. The government reacted swiftly to the scandal, John Reid publicly remarking that the sentence handed down in the Sweeney case was “unduly lenient” and that he would write to the Attorney General to ask him to send the case for review to the Court of Appeal. Blair promised that further measures would be brought forward to tighten up the early release provisions for dangerous offenders46 and, in November 2006, it was announced that automatic early release at the half-way stage of a sentence, as was established by the 2003 Act, is to be abolished and judges allowed to determine the minimum tariff offenders should serve47.

  • 48   Rethinking Crime and Punishment, Rethinking Crime and Punishment : The Report, 2004, p. 23.
  • 49   Hough, Mike and Roberts, Julian, V., “Sentencing trends in Britain : Public knowledge and public (...)

16However, more detailed studies of public opinion suggest that the public itself is not as punitive as a cursory reading of the tabloid press may suggest. Recent work carried out by Rethinking Crime and Punishment, a think tank set up in 2001 “to raise the level of public debate about the use of prison and alternative forms of punishment in the UK”,into public attitudes on crime found that “although public attitudes are complex, sometimes contradictory and often highly dependent on the wording of poll questions, they are in general much less punitive than is often thought to be the case”48. Indeed, research by Hough and Roberts has shown that the public often know little about sentencing practice, perceiving it to be more lenient than it actually is49. Such findings would suggest that the move from an elitist to a popular policy-making process in criminal justice has not been solely motivated by any purported change in public opinion. Even if public opinion could be claimed to be genuinely punitive, we have seen that, in the past, the government managed to resist demands for tough policies – its abolition of and then its refusal to reinstate the death penalty is witness to its capacity to resist the winds of punitiveness. The answer for the change in the nature of policy-making process under New Labour must therefore be found elsewhere.

  • 50   The theory of broken windows was elaborated by James Q. Wilson and George L. Kelling in their 198 (...)
  • 51  Irwin, John, Austin, James and Baird, Chris, “Fanning the Flames of Fear”, Crime and Delinquency 4 (...)

17Indeed, it would appear that the punitive attitudes of New Labour governments have been informed not just by public opinion but also by conservative criminology. As opposed to the liberal version of criminology, prevalent in the post-war period, conservative criminology insists on the personal responsibility of the offender. No longer is the criminal to be regarded as a victim of social circumstances but rather as a free-thinking, rational individual who most probably weights up the costs and benefits of punishment before committing a crime. Its chief proponents have come from the United States. They include James Q. Wilson, famous for developing the concept of ‘broken windows’50 which has formed the basis of zero tolerance policies ; John DiIulio, a former student of Wilson, counsellor to the Clinton administration and frequent contributor to the editorial pages of The New York Times and The Wall Street Journal ; and Charles Murray, the right-wing sociologist, famous for helping to import the underclass thesis to the UK. All three academics regard imprisonment as an effective way of dealing with crime on the basis that it may have a deterrent effect on rationally calculating potential offenders. Despite the fact that some commentators have disputed the scientific basis of their arguments and classified their theories as “shoddy science”51, they have had a profound influence in displacing the liberal post-war consensus on crime. Their influence in the UK is evident in the renewed emphasis on criminal responsibility and the policies which result from such a view of criminality.

18Although New Labour promised to reconcile both conservative and liberal criminologies in fighting both the crime and its causes, in practice, it seems that the two approaches have been difficult to reconcile, the former policy often undermining the latter. It would seem that lack of personal responsibility is now regarded as the chief cause of crime. The emphasis on responsibility has been particularly clear in youth justice, as epitomised by the title and content of the 1997 White Paper, No More Excuses. In the preface, former Home Secretary Jack Straw announced the government’s new policy to tackle young offending :

  • 52   Home Office, No More Excuses : A new approach to tackling youth crime in England and Wales, Novem (...)

An excuse culture has developed within the youth justice system. It excuses itself for its inefficiency, and too often excuses the young offenders before it, implying that they cannot help their behaviour because of their social circumstances. Rarely are they confronted with their behaviour and helped to take more personal responsibility for their actions. The system allows them to go on wrecking their own lives as well as disrupting their families and communities. This White Paper seeks to draw a line under the past and sets out a new approach to tackling youth crime. It begins the root and branch reform of the youth justice system that the Government promised the public before the Election52.

  • 53   The term was coined by Pitts, John, in The New Politics of Youth Crime : Discipline or Solidarity (...)

19 The most striking example of the translation of this policy into practice has been the effective “dejeuvenalisation” of youth policy53 – i.e. the tendency to treat young offenders more and more like adult criminals. With regard to adult offenders, this new emphasis on criminal voluntarism is exemplified by the creation of purportedly deterrent three strikes sentences for drug traffickers and domestic burglars. Both these policies have been subjected to a barrage of criticism by academic criminal justice professionals, but it would appear that their concerns have been ignored. It must then be asked exactly how conservative criminology has managed to exert such a powerful influence in the UK.

Changing of the guard

  • 54   Norton-Taylor, Richard, “Tony Blair and the case of the disappearing cabinet”, The Guardian, 30 M (...)
  • 55   Ibid.
  • 56   Chadwick, Andrew and Heffernan, Richard, “Introduction : The New Labour Phenomenon”, in Chadwick, (...)
  • 57 Cf. David Downes et Rod Morgan, “The British General Election 2001 : The centre right consensus”, o (...)

20The answer would seem to lie in the fact that, far from moving away from an elitist policy-making process and towards direct democracy, New Labour has simply replaced one elite with another. In general, policy-making within the Blair government has been a highly centralised process, with power being concentrated in the hands of a small, select group of individuals, close to the Prime Minister himself. Lord Butler, former Cabinet secretary, has spoken of the move away from Cabinet-style government, evidenced by the fact that papers on critical issues, notably intelligence reports on Iraq, were not transmitted to Cabinet ministers54. He claimed that New Labour was obsessed with the need to create party consensus with the result that there were few Cabinet discussions or decisions about policy throughout Blair’s 10-year reign55. Andrew Chadwick and Richard Hefferman have also claimed that the range of personnel involved in policy-making under Blair has been limited, noting that “New Labour has been constructed out of a curious mixture of a small, tightly centralised ‘on message’ cadre of ‘moderniser’ politicians and staff, on the one hand, and a loose network of think-tanks, academics, journalists and opinion pollsters, on the other”56. So, much as during the post-war period, it would seem that policy-making has been concentrated for the most part in the hands of the few, allowing for the forging of consensus in the domain of criminal justice. This consensus appears to exist not just within government, but also across parties, with all main parties tending follow an almost uniformly tough line on law and order57.

21However, there are some crucial differences with the past: firstly, as we have seen, the nature of the consensus has changed dramatically, moving from one influenced by liberal criminology to one dominated by conservative criminological thinking; secondly, even though the public plays only a limited role in the policy-making process (e.g. via the focus group), it is considered imperative in New Labour circles that policy is seen to accord more directly with public opinion. The result of this latter trend has been that the academic opinion that is favoured today is that which espouses a common sense approach rather than a scientific approach to social problems. Hence the ideas of the conservative criminologists have proved particularly popular in government circles. They have been increasingly welcomed inside the corridors of power, either through direct contact between their individual proponents and government ministers or, more often, via the medium of the increasing number of think-tanks present in the UK.

  • 58   Although the slogan has often been attributed to Tony Blair himself, it seems it was actually ori (...)
  • 59   Bale, Tim, “Demos : Populism, Eclecticism and Equidistance in the Post-Modern World”, in Kandiah, (...)
  • 60   Hinsliff, Gaby, “London crime SOS to New York”, The Observer, 10 February 2002.
  • 61   Ibid.

22As we have seen, the chief proponents of conservative/common sense criminology come from the United States. It is no coincidence that a significant number of policies adopted by New Labour, not only with regard to criminal justice, but also to economics and other social problems, have been directly transported into the UK from across the Atlantic. From the very beginning of its rise to power, New Labour has sought advice and inspiration from American contemporaries, most notably from Bill Clinton’s New Democrats. Indeed, it was shortly after a trip to the United States in 1993 to study Clinton’s electoral strategy that Blair uttered the now infamous slogan, ‘tough on crime, tough on the causes of crime’58. Geoff Mulgan, one of the most influential of New Labour modernisers, has been quoted as saying that the USA is “far more fertile intellectually in terms of policy innovation than any European country at the moment”59. Consequently, it is not at all surprising that a number of Americans have also been invited to Britain to provide advice to government on various issues, notably on zero tolerance policing. In early 2002, the Home Office invited William Bratton, head of the NYPD, and responsible for implementing zero tolerance policing strategies in New York, to address British police officers60. The following month, David Blunkett, as Home Secretary, held talks with the former mayor of New York, Rudy Giuliani, on the possibility of introducing New-York style zero tolerance policing to Britain61. Zero tolerance theory had, however, already been translated into British policy in the form of anti-social behaviour legislation which focuses on low-level disorder rather than crime. In 1997, the Fabian Society published a collection of essays in which Alun Michael (who was to become First Secretary in the new Welsh Assembly) declared his clear support for zero tolerance, writing,

  • 62   Michael, Alun, “Responding to the Challenge of Crime”, in Michael, Alun (ed.), Tough on crime, to (...)

One interpretation of ‘zero tolerance’ is fast police action to stop crime in its tracks and to protect the public. That interpretation has its place. But another interpretation is to ‘nip things in the bud’ when they start to go wrong, to recognise the patterns of behaviour which, if left to grow, will go from bad to worse. If graffiti start to creep along a wall, they will soon take it over, while one broken window left unrepaired will start to feed a sense of decay as others follow.62

  • 63   Blair, Tony, “Crime and Society”, Fabian Society, What Price a Safe Society ?, Fabian Pamphlet 56 (...)

23 The Fabian Society has also placed emphasis on the notion of the personal responsibility of the criminal, held so dear by the American conservative criminologists. In 1994 it was the Fabian Society that gave Blair the platform to express his belief in the personal responsibility of the criminal. He wrote, “We should never excuse the commission of criminal acts on the grounds of social conditions”63.

24The idea of criminal voluntarism was also taken up by a number of other think tanks from the left of the political spectrum. Demos, whose role in influencing New Labour has been widely recognised64, has attempted to formulate a version of the thesis which may prove more acceptable to the traditional Left. In a 1997 Demos publication Jon Bright concluded that “the decision to offend is not a purely rational choice based on a logical assessment of the costs and risks involved”, yet he claimed that it is “also a product of a culture that has to be changed”65. In placing emphasis on the problem of ‘culture’ rather than the possible structural causes of criminality, Bright shifted the focus of responsibility from government to communities and individuals. His book is currently listed on the Home Office reading list for new practitioners in criminal justice66. Demos’ ideas have been most prominently imported into New Labour thinking by Geoff Mulgan, cited above, founder and first director of the think-tank. The fact that the idea of individual responsibility has demonstrably been applied to both social and criminal justice policy would suggest that left-wing think-tanks such as Demos and the Fabian Society have played a non-negligible role in helping to lend intellectual legitimacy to the concept of criminal voluntarism.

  • 67   Murray, Charles, Simple Justice, London, CIVITAS, 2005, p. 5.
  • 68   Blunkett, David, “Renewing Democracy and Civil Society”, Lecture presented to CIVITAS, October 20 (...)

25It should be noted that the New Labour government has also echoed the views expressed by think tanks from the right, most notably those of CIVITAS, the Institute for the Study of Civil Society which emerged out of the Thatcherite IEA. CIVITAS has done much to promote the ideas of Charles Murray in the UK. For example, in 2005, it published one of his essays, entitled “Simple Justice”, in which he not only re-iterated the idea that prison ‘works’ to deter criminality but also vehemently criticised the liberal élite of the post-war era, suggesting that they live in a completely different world from the public67. The attack was redolent of New Labour ministers’ attacks on the liberal elites, described earlier. Again, this intellectual convergence between government policy and CIVITAS was not the result of pure coincidence. It would seem that direct links have been created between CIVITAS and members of the New Labour policy-making circle. David Blunkett lectured to the society emphasising the need for personal responsibility in civic society, thus echoing CIVITAS’ own ideas68. Such convergence of ideas should not be surprising given that key personnel, namely David Green and Norman Dennis, are both members of the Labour Party and describe themselves as ‘ethical socialists’. Tony Blair too has described himself in these terms, declaring in 1998 :

  • 69   Blair, Tony, Speech at Westminster Central Hall, 5 November 1998, cited in Rentoul, John, Tony Bl (...)

If you define socialism as old-style, traditional state control and nationalisation then I am not a socialist. If you define socialism as a set of values based around a belief in society and community, if you define it in a more ethical sense, then that is the reason why I am in the Labour Party.69

  • 70   Seldon, Antony, op. cit., p. 126.

26 The concept of ethical socialism as promoted by Tony Blair and CIVITAS fits well with the communitarianism of another American, Amitai Etzioni, who was introduced to Blair by Geoff Mulgan in 199570. Interestingly, it is Demos that has done the most to publicise Etzioni’s ideas in the UK. Like the conservative criminologists, Etzioni places a strong emphasis on individual responsibility, necessary in order to create strong, moral communities which engender a sense of respect amongst their members, on which their rights should be conditional. In order to preserve this precious balance between rights and responsibilities, he values the expressive power of punishment as means of reinforcing the moral order of the community. Blair too has expressed the idea that failure to accept responsibility and to respect the moral order of society justifies harsh penalties, which may be financial, for example, the withdrawal of welfare benefits from those refuse to accept work, or criminal.

27It would consequently appear that there has been considerable cross-fertilisation of ideas between think-tanks on both left and right and New Labour itself, reinforcing the idea that a new consensus has formed between a small group of new élites who enjoy privileged access to the corridors of power. As the liberal consensus before it, it is strong, capable of resisting challenges which may come from outside élite circles, such as those emanating from penal reform pressure groups and more traditional academic circles. Its punitive ethos does appear to chime with popular opinion, at least as it is represented in the tabloid press, but the policy-making process is not populist in the sense that it is driven solely by those concerns. As we have seen, a profound cultural and intellectual shift was necessary within the corridors of power before such opinion could find expression in government policy.

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Ashworth, Andrew and Hough, Michael, “Sentencing and the Climate of Opinion”, Criminal Law Review, 1996: 776–787.

Bale, Tim, “Demos : Populism, Eclecticism and Equidistance in the Post-Modern World”, in Kandiah, Michael and Seldon, Anthony (eds.), Ideas and Think Tanks in Contemporary Britain : Volume 2, London, Frank Cass, 1996 : 22-34.

Blair, Tony, Speech on the launch of the new five-year crime strategy, A new consensus on law and order, 19 July 2004.

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Bright, Jon, Turning the Tide - crime, community and prevention, Demos, 1997.

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Downes, D., Morgan, R., “The British General Election 2001 : The centre right consensus”, Punishment and Society 2002 : 81-96.

Downes, D., Morgan, R., “Dumping the ‘Hostages to Fortune’ ? The Politics of Law and Order in Post-War Britain”, Maguire, M., Morgan, R., Reiner, R. (eds.) The Oxford Handbook of Criminology, Oxford, Oxford University Press, 1997 : 87-134.

Elcock, Howard, “Law, Order and the Labour Party”, in Norton, Philip (ed.), Law and Order and British Politics, Aldershot, Gower, 1984 : 149-164.

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Websites :

www.civitas.org.uk

www.demos.co.uk

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www.number10.gov.uk

www.publications.parliament.uk

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Notes

1   Blair, Tony, Speech on the launch of the new five-year crime strategy, A new consensus on law and order, 19 July 2004. Available at http://www.number10.gov.uk/output/Page6129.asp. Consulted on 28 April, 2007.

2   Ryan, Mick, “Engaging with punitive attitudes toward crime and punishment. Some strategic lessons from England and Wales”, Pratt, John, Brown, David, Brown, Mark, Hallsworth, Simon and Morrison, Wayne, The New Punitiveness : Trends, theories, perspectives, Cullompton, Willan Publishing, 2005, p. 140.

3   Ryan, Mick, Penal Policy and Political Culture in England and Wales, Winchester, Waterside Press, 2003, p. 16.

4   Radzinowicz, Leon and Hood, Roger, The Emergence of Penal Policy in Victorian and Edwardian England, Oxford, Clarendon Press, 1990, p. 582.

5   Webb, Sidney and Webb, Beatrice, with Shaw, Bernard, English Prisons Under Local Government, London, Longmans, Green & Co., 1922, p. 217.

6   The Prison Commission, created by the Prisons Act 1877, was responsible for the entire prison system of England and Wales until it was abolished by the Criminal Justice Act of 1961.

7   Fox, Lionel W., The English Prison and Borstal Systems, London, Routledge & Keegan Paul, 1952, pp. 83-84.

8   Morgan, Rod, Formulating Penal Policy : The Future of the Advisory Council on the Penal System, London, NACRO, 1979, p. 2.

9   Ibid.

10   Ryan, Mick, Penal Policy and Political Culture, op. cit., p. 19.

11   Loader, Ian, “Fall of the ‘Platonic Guardians’ : Liberalism, Criminology and Political Responses to Crime in England and Wales”, British Journal of Criminology, 2006, no. 46, pp. 563-564.

12   Ryan, Mick, Penal Policy and Political Culture, op. cit., p. 18.

13   Morgan, Rod,, op. cit., p. 2.

14   Ryan, Mick, Penal Policy and Political Culture, op. cit., p. 14.

15 Ibid., p. 16.

16   The term was coined by a retired Home Office official, cited by Loader, Ian, op. cit., p. 563.

17 Ibid., p. 564.

18 Ibid., p. 565.

19   Martinson, Robert, “What Works ? Questions and Answers About Prison Reform”, The Public Interest, 1974.

20   Community service and the deferred sentence were adopted by ss.15-19 and s.22 of the CJA 1972.

21   Morgan, Rod, op. cit., p. 10. Ryan, Mick, The Acceptable Pressure Group : Inequality in the penal lobby, Farnborough, Saxon House, 1978, p. 36.

22   Thoresby, Robert, “The Criminal Justice Act 1972”, The Modern Law Review, 1973, p. 420.

23   Morgan, Rod, op. cit., p. 12.

24   Downes, David and Morgan, Rod, “Dumping the ‘Hostages to Fortune’ ? The Politics of Law and Order in Post-War Britain”, Maguire, M., Morgan, R., and Reiner, R. (eds.) The Oxford Handbook of Criminology, Oxford, Oxford University Press, 1997, p. 88.

25  Elcock, Howard, “Law, Order and the Labour Party”, in Norton, Philip (ed.), Law and Order and British Politics, Aldershot, Gower, 1984, p. 153.

26   In 1979 the daily average prison population stood at 42,220, compared to 39,820 in 1975. It continued to rise until 1988 when it temporarily fell. Source : Cavadino, Michael and Dignan, James, Penal Systems : A Comparative Approach, London, Sage, 2006, p. 63.

27 Ibid., p. 64.

28   Faulkner, David, Darkness and Light : Justice, Crime and Management for Today, Howard League, 1996, p. 15.

29   Downes, David and Morgan, Rod, “The British General Election 2001 : The centre right consensus”, Punishment and Society 2002 : 85-86.

30   Home Office, Crime, Justice and Protecting the Public,Cm 965, London, HMSO, 1990, para.2.7, p. 6.

31   Conservative Party, Election Manifesto 1979.

32   Thatcher, Margaret, Speech to Conservative Party Conference : Confrontation with Reality, 14 October 1977.

33   The Labour Party, Election Manifesto 1979 : The Labour Way is the Better Way.

34   Thatcher, Margaret, Speech to Conservative Party Conference, 14 October 1988.

35   Cited by Ashworth, Andrew and Hough, Michael, “Sentencing and the Climate of Opinion”, Criminal Law Review, 1996, p. 783.

36   Blair, Tony, Speech on the launch of the new five-year crime strategy, op. cit.

37   Hall, Stuart, “The Great Moving Nowhere Show”, Marxism Today, November/December 1998, p. 14.

38   White, Michael, “Straw attacks woolly liberals”, The Guardian, 10 January 2000.

39   Cited by Loader, Ian, op. cit., p. 580.

40   Loader, Ian, op. cit., p. 581.

41   Ibid.

42   Tonry, Michael, Punishment and Politics : Evidence and Emulation in the Making of English Crime Control Policy, Cullompton, Willan Publishing, 2004, p. 3.

43   Gould, Philip, The Unfinished Revolution : How the Modernisers Saved the Labour Party, London, Abacus, 2001, p. 328.

44   White, Michael and Wintour, Patrick, “Clarke breaks silence with attack on Reid”, The Guardian, 27 June 2006.

45   Leader, “We demand real justice”, The Sun.

46   Reid, John, Hansard Debates, 14 June 2006, col. 763.

47   Travis, Alan, “Courts shakeup to end automatic early release”, The Guardian, 6 November 2006.

48   Rethinking Crime and Punishment, Rethinking Crime and Punishment : The Report, 2004, p. 23.

49   Hough, Mike and Roberts, Julian, V., “Sentencing trends in Britain : Public knowledge and public opinion”, Punishment and Society 1999 : 11-26.

50   The theory of broken windows was elaborated by James Q. Wilson and George L. Kelling in their 1982 article, “The police and neighbourhood safety : Broken Windows”, published in Atlantic Monthly. It states that criminality thrives when society turns a blind eye on petty crime and low-level disorder. To illustrate their theory, they used the metaphor of a broken window which, when left unrepaired, will send out a signal that no-one cares, thus encouraging other windows to be broken.

51  Irwin, John, Austin, James and Baird, Chris, “Fanning the Flames of Fear”, Crime and Delinquency 44/1, 1998, p. 35.

52   Home Office, No More Excuses : A new approach to tackling youth crime in England and Wales, November 1997.

53   The term was coined by Pitts, John, in The New Politics of Youth Crime : Discipline or Solidarity ?, Basingstoke, Palgrave, 2001, p. 48.

54   Norton-Taylor, Richard, “Tony Blair and the case of the disappearing cabinet”, The Guardian, 30 May 2007.

55   Ibid.

56   Chadwick, Andrew and Heffernan, Richard, “Introduction : The New Labour Phenomenon”, in Chadwick, Andrew and Heffernan, Richard (eds.), The New Labour Reader, Cambridge, Polity Press, 2003, p. 4.

57 Cf. David Downes et Rod Morgan, “The British General Election 2001 : The centre right consensus”, op. cit.

58   Although the slogan has often been attributed to Tony Blair himself, it seems it was actually originally formulated by Gordon Brown, cf. Seldon, Anthony, Blair, London, The Free Press, 2005, p. 150.

59   Bale, Tim, “Demos : Populism, Eclecticism and Equidistance in the Post-Modern World”, in Kandiah, Michael and Seldon, Anthony (eds.), Ideas and Think Tanks in Contemporary Britain : Volume 2, London, Frank Cass, 1996, p. 26.

60   Hinsliff, Gaby, “London crime SOS to New York”, The Observer, 10 February 2002.

61   Ibid.

62   Michael, Alun, “Responding to the Challenge of Crime”, in Michael, Alun (ed.), Tough on crime, tough on the causes – a collection of essays, Discussion Paper 33, London, Fabian Society, 1997, p. 5.

63   Blair, Tony, “Crime and Society”, Fabian Society, What Price a Safe Society ?, Fabian Pamphlet 562, Proceedings of the 1994 Fabian New Year School, London, Fabian Society, 1994, p. 3.

64   Gamble, Andrew, “The Meaning of the Third Way”, in Seldon, Anthony and Kavanagh, Dennis (eds.), The Blair Effect 2001-5, Cambridge, Cambridge University Press, 2005, p. 431.

65   Bright, Jon, Turning the Tide - crime, community and prevention, Demos, 1997, p. 111.

66 Cf., http://www.crimereduction.gov.uk/learningzone/reading.htm. Consulted on 1 August 2007.

67   Murray, Charles, Simple Justice, London, CIVITAS, 2005, p. 5.

68   Blunkett, David, “Renewing Democracy and Civil Society”, Lecture presented to CIVITAS, October 2001.

69   Blair, Tony, Speech at Westminster Central Hall, 5 November 1998, cited in Rentoul, John, Tony Blair : Prime Minister, London, Time Warner, 2002, p. 436.

70   Seldon, Antony, op. cit., p. 126.

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Emma Bell, « New Guests in the Corridors of Power : the decline of the liberal élite and the forging of a new penal consensus », Observatoire de la société britannique, 6 | 2008, 145-166.

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Emma Bell, « New Guests in the Corridors of Power : the decline of the liberal élite and the forging of a new penal consensus », Observatoire de la société britannique [En ligne], 6 | 2008, mis en ligne le 01 février 2011, consulté le 30 avril 2017. URL : http://osb.revues.org/452 ; DOI : 10.4000/osb.452

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Emma Bell

Doctorante à l'Université de Lyon II

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