Criminal Justice in the United Kingdom, 2010 to 2015: Interesting Times for Scotland

I want to begin by making some brief comments about what is happening in Scottish criminal justice at present because there is no doubt that we are going through very interesting times where the steer isn’t necessarily all about responding to austerity, but rather active debates about progressive penal reform. Perhaps it is even one of those moments when the possibility of a substantial change in direction is imaginable.

The Question of Prisons for Women in Scotland

On 26th January 2015 Michael Matheson, the Scottish Government’s (SG) Secretary for Justice, announced that he would not approve contracts to construct a new 300-place women’s prison at Inverclyde as a replacement for the current national establishment for women at HMP Cornton Vale. This commitment to closure follows repeated damning Prisons Inspectorate reports, the Angiolini Commission on women offenders that recommended closure, and the SG’s commitment to implementing the broad terms of that Commission. What is interesting is the political head of steam that built up against the build of a new large replacement, from diverse groups - not least and including Women for Independence, a group formed in 2014 to campaign for Scottish Independence. A last minute but perhaps surprising advocate for the project not to go ahead was none other than Kenny MacAskill, Cabinet Secretary for Justice since 2007 until his replacement in November 2014, who argued that there was an opportunity here for his successor to take a radical step back from our assumptions about imprisonment arguing that:

Now is the time for a radical social policy change; it’s a time of political opportunity; it’s time to ensure that as well as no limits being placed on opportunity for women in Scotland, that those who have fallen by the wayside and been imprisoned don’t get left behind (Kenny MacAskill, speaking in 2014).

An in-depth interview with past Scottish Criminal Justice Secretary Kenny MacAskill is to be found in the March 2015 issue of SJM, available at scottishjusticematters.com​.We know that women affected by criminal justice, certainly most women who end up in prison, have multiple and complex health, social and addiction problems and that an appreciation and understanding of this must also inform ongoing debates; so, too, should issues of poverty and inequalities, as should, it may also be said, failures in housing, social care and child protection practices in Scotland.  Considerable time and energy is being devoted to coming up with a plan for women in prison, but again radical thinking in penal affairs is called for the remaining 96% of the prison population - men! Certainly the Angiolini Commission recognised that the structural reform of criminal justice in Scotland is required to deliver across the board. It once again needs restating that we cannot think about criminal justice without considering urgent questions of social justice and inequalities.

One week after the HMP Inverclyde announcement, First Minister (FM) Nicola Sturgeon took the opportunity of a visit to the HQ of Victim Support Scotland to announce the extension of the automatic early release restrictions proposed in legislation which had been introduced by MacAskill in the autumn, following years of resisting (especially Conservative Party) pressure to abolish automatic early release completely. How are we to read the announcement? Should we see it as a political deal with the other parties or, as some have argued, is it a new dawn for consensus politics in relation to criminal justice? It is perhaps of some significance that it was Nicola Sturgeon who made the announcement and that may signal a greater willingness on the part of the current FM to be identified with criminal justice policies than her predecessor.

The SNP in Government 2007 - A Renewed Concern with Criminal Justice?

Alex Salmond, as FM, was largely uninterested in social policy. In the case of criminal justice, this element of autonomy allowed Kenny MacAskill to pursue an agenda that was in part a continuation of the reform agenda of the preceding Labour-Liberal Democrat coalition between 2003 and 2007, and in part also rebuttal, or at least a reframing, of that agenda, not least that Coalition’s obsession with anti-social behaviour.

In the overall context of the theme of this seminar, the advent of the Westminster Conservative-Liberal Democrat UK Coalition Government in 2010 was substantially irrelevant to the business of criminal justice policy making as such in Scotland; that is, apart from the question of austerity policies, welfare reforms, and so on. In this jurisdiction the key dates are the entry of the SNP into government in 2007, as a minority administration, followed by their re-election as a majority Scottish Government in May 2011 and indeed, perhaps for the reasons I have outlined above, 2015.

The focus in criminal justice since devolution has been on the pragmatic challenges of working through an ongoing programme of reform to deal with the neglect of pre-devolution institutions and agencies (court reform, procedural reform, police, children’s hearings) as well as responding to new priorities (victims, organised crime) and exigencies (austerity, sectarian violence, security and terrorism). This over-arching reform agenda has pre-occupied all post-devolution Scottish administrations, and the continuities between the justice policies of successive administrations are at least as important as the differences between them.

Considering claims that there was something uniquely welfarist or liberal about Scottish criminal justice, it is argued that this has attained a mythological status not entirely borne out by the evidence. The view is that the political configurations in the first two Scottish coalition administrations, ending in May 2007, exposed policy-making to the relatively punitive political influences of New Labour UK Governments and that there was an associated process of ‘de-tartanisation’, reversed on the coming to office of the SNP. This is perhaps an over-simplistic chronology, and the evidence points to a much more complex and nuanced story of overdue reform in a small jurisdiction with a brand new Parliament and parliamentarians.

The degree of continuity up to 2007 is perhaps underestimated, while MacAskill was reported as saying shortly after his appointment:

We are distinct from south of the Border, not simply in our judicial system, but because our society is distinct [ . . .]. There are problems we need to address but actually there’s a firm base to build upon and I’ve made it quite clear that many of the things that my predecessors did, we supported in opposition and I hope that they are grateful for that.

Despite clear elements of policy continuity, there was a perception of change which may be attributed as much to overall government priorities, along with style and personalities, as to substantive justice policy differences, certainly during the 2007-2011 administration when the priority was about establishing the SNP as a competent party of government.

The Scottish Context in Comparison with England and Wales

I want to make a couple of quick points that are more clearly connected to a direct comparison between the approach to policy making between Scotland and England and Wales, and the overarching demands of austerity as argued by Richard Garside.

The first relates to privatization. All post May 2007 work on the prison estate has continued to exclude privatized arrangements, with the two new builds under the previous administration at Addiewell and Kilmarnock having gone to the private sector. These remain anomalous with the post 2007 Scottish Government’s view that these institutions should be provided and managed by the state. However, it is probably worth remembering that key elements of Scottish criminal justice delivery are privatised; for example, G4S runs the prison escort contract.

The second issue relates to the question of the tension between localism and centralism discussed so usefully by Richard Garside in the Coalition Years report. On the specific issue of the formation of Police Scotland: clearly the imperative to economise and become more efficient in terms of spending allowed a political context or opportunity in which a reform became possible - although when first mooted in 2010, it was by no means inevitable that change would take the form of a single service, rather than, say, 2 or 3 forces. But it is perhaps worth saying that there have been calls for a national police service since the 1850s, and that there were sound arguments in a jurisdiction of 5m people, as well as a need to address the drawbacks of the 1975 regionalisation of the disparate 8 police forces, dominated by Strathclyde Police which was responsible for policing almost half the entire Scottish population. There is no doubt that the governance of the reforms could have been handled better, and clear questions arise from them, for example: about the nature of and the processes supporting local policing; about the formal relationship between Police Scotland and local authorities, and the relative powerlessness of the latter in the face of national policing priorities and policies; and as regards the undoubted politicisation of policing as a consequence of all of this. 

Next: 'Criminalising' Poverty