Marketisation and competition in criminal legal aid: implications for access to justice

The right to legal representation is a fundamental right, and arrangements for funding this are crucial to ensuring access to justice for those accused of criminal offences. Criminal legal aid has long been regarded as an entitlement for most citizens, particularly the most economically vulnerable. However, criminal legal aid has been cast in a different light in recent years, viewed not through the lens of welfarism but subjected to neo-liberal values such as cost neutrality, marketisation and managerialism. This was particularly evident in the ‘Transforming Legal Aid’ consultation of 2013, which resurrected the idea of competitive tendering for provision of criminal legal aid services. Although not pursued in full, subsequent changes – including cuts of 8.75% to fees for legal aid lawyers – appear to have significantly affected the scope of criminal legal aid. The number of providers of such services has consistently declined over the past decade and firms have frequently reported significant financial pressure. Arguably, these reforms – justified in neo-liberal terms – have affected access to justice and by extension the quality of justice offered by the Criminal Justice System, CJS. This chapter will examine the market-driven reform of criminal legal aid in recent years, and consider two apparent examples of impact: evidence of an increasing number of litigants-in-person in criminal cases; and the outsourcing of police station work to independent ‘agents’. The chapter will also question some of the apparent contradictions in neo-liberal reform of criminal legal aid, such as the deliberate policy of reducing the size of the provider market; and the ‘false economies’ created by the pursuit of efficiency and economy: goals which are underpinned and enforced by the Criminal Procedure Rules.

Surviving the revolution? The voluntary sector under Transforming Rehabilitation in England and Wales

Regarded by commentators as an emollient to soothe critics of the part privatisation of the public probation service, the Transforming Rehabilitation (TR) reforms in England and Wales promised an enlarged role for the voluntary sector in the resettlement and rehabilitation of offenders. Whether such changes mark a decisive turning point or in the fullness of time represent just another twist in the long and messy narrative of voluntary sector provision of offender services remains an open question. This chapter will examine the role and fortunes of the sector during the tumultuous period between 2014 and 2019 and identify what lessons can be learnt for the future.

Prison education: a Northern European wicked policy problem?

‘Wicked policy problems’ are defined as complex, not fully understood by policy makers, highly resistant to change and seemingly immune to any evidence likely to bring about change for the better. Policy, in the case of prison education, is not necessarily driven by what works and is often not evidenced-based. It is increasingly positioned by political expediency and the signalling of politicians’ ‘toughness on crime’. In this chapter I look at three distinctly different prison education systems in Northern Europe; in England, Germany and Norway. I examine the extent to which discourses associated with both the marketisation of education and penal populism have influenced the construction and facilitation of prison education in all three countries. Finally, I argue that, to varying degrees, the reconstruction of prison ‘education’ into low-cost job skills training contributes to the domination of policies that speak more to public moral panic and the need to cut the economic costs of welfare than to the rehabilitation of prisoners.

A flawed revolution? Interrogating the Transforming Rehabilitation changes in England and Wales through the prism of a Community Justice Court

This chapter investigates changes that have taken place in the recent past in relation to interventions with adult offenders in England and Wales, particularly in the context of the application of risk technologies and the increasingly managerial and market-driven set of arrangements. This review draws on criminological frameworks which examine such neo-liberal penal reforms, where social problems have been reframed as crime problems and where the application of the political policy of austerity has brought about the fragmentation and reduction of local services. Quantitative and qualitative data from a 2-year ESRC-funded research project are presented to illustrate and analyse the situations regarding ‘low-level’ offenders, whose cases were heard in a Community Justice Court in a large city in England. Detailed examination of this data reveals a complex picture of offending patterns, social issues and the pre-existing involvement of a wide range of statutory and third-sector agencies, even for many deemed ‘low-risk’ offenders. In many of these cases pathways out of crime seemed elusive, with rehabilitative interventions being framed in terms of penal narratives which emphasised individual responsibility and which denied wider structural problems. This critique raises concerns about the implications and consequences of these issues, particularly in relation to the widescale changes that were brought about by the Transforming Rehabilitation agenda. It argues that for constructive and effective interventions to take place in the field of community sanctions, including the therapeutic justice approach explored here, social justice and a more holistic approach to rehabilitation need to be (re)placed as central pillars of the criminal justice system.

The carceral state and the interpenetration of interests: commercial, governmental and civil society interests in criminal justice

The expansion and diffusion of the ‘carceral state’ – understood here as the set of institutional configurations and actors that prioritise punishment, containment, detention, and/or incarceration as a means of treating poverty and marginalisation – is a looming contemporary concern. It seems probable that confluent interests from the commercial, governmental, and civil society sectors will, in the absence of robust interrogation, continue to extend the scope of penal supervision in the lives and communities of already marginalised people. Drawing upon a wide range of literature our chapter critically queries the pairing of punishment and the marketisation of criminal justice. For example, is the extension of electronic monitoring simply a convenient use of a handy technology? Or does it involve the inadequately examined delegation of the state’s power to punish? We call into question the troubling relationship between claims of market-as-accountability versus democratic decision-making. By questioning the interpenetration of these interests, our intention is to re-ignite public conversation concerning the legitimacy of current penal developments and to call attention to some alternative paths.

Conclusion

The chapters in the book demonstrate the sheer scale of marketisation and privatisation that has occurred in criminal justice in the UK. There is evidence similar marketisation has occurred in other states around the world. As this book demonstrates, there are a whole array of other means by which the market has been used to shape the delivery of experiences of criminal justice. The chapters in this book expose a range of modes of governance and accountability that are at play and demonstrate the ways in which marketisation has impacted on criminal justice at macro-, meso- and micro-levels. Importantly, they have shown what the impact of this has been on the broader field, the individuals working within those fields and the service users that are subjected to systems of power delivered in newly formed markets. In this concluding chapter we attempt to draw some of the themes that run across the earlier chapters together and consider what the future might hold for criminal justice and marketisation.

Market society utopianism in penal politics

This chapter discusses the utopian intellectual origins of some strands of contemporary free market ideas and practices from their post-war revival via thinkers such as Friedrich Hayek, whose ideas went on to influence the New Right following economic and political crises of the 1970s. The discussion then draws on Karl Polanyi’s (1945) Origins of our Time: The Great Transformation, where he first gave theoretical expression to the concept of a ‘market society’. Published just after the Second World War and in the context of emerging welfare states, these thinkers marked out the ideological divides that have dominated political-economic thought since. The chapter considers the pre-eminence of free market ideology with regards to penal politics and thinking. It concludes by noting that predictions of the withering away of outsourcing and competitive regimes in the aftermath of the financial crisis which began in 2007-8 appear to be a ‘false dawn’. However, a change in direction may be imminent in the wake of controversial and costly terminations of penal service contracts.

Understanding the privatisation of probation through the lens of Bourdieu’s field theory

This chapter contributes to the growing body of criminological work to use Bourdieu’s field theory to understand changes in policy and practice in criminal justice. The chapter uses the privatisation of probation services in England and Wales as a case study to argue that although probation practitioners vociferously opposed the reforms, their attempts to prevent them were always unlikely to succeed. This is because Transforming Rehabilitation needs to be understood as the culmination of a longstanding process of symbolic violence which resulted in the depreciation of relevant forms of capital amongst practitioners and their allies. The chapter begins with a brief overview of the reforms before turning to a discussion of Bourdieu’s field theory. I argue that because ‘capital’ links field and habitus – in that capital is the product of the way in which habitus and field are, or are not, attuned to one another – this is an important mechanism of field theory which has, hitherto, been neglected. I argue that as probation practitioners’ habitus has remained relatively stable over the last fifty years, the changing field led to a delegitimation of the forms of capital owned by practitioners which left them unable to mount a successful defence of a public probation service.

Police outsourcing and labour force vulnerability

The post-financial crisis politics of austerity have required police forces to make unprecedented savings at a rapid pace. In response, some forces have turned to the market, outsourcing back office and frontline functions to commercial enterprises which promise to deliver the same service (or more) for less. This trend has unsurprisingly captured the attention of policing scholars who have begun to explore issues of policy, politics, accountability and service delivery in outsourced areas. This chapter adds another variable into the equation: labour force vulnerability. Specifically, it compares vulnerability in outsourced and non-outsourced frontline roles in police custody suites. It argues that in addition to traditional police labour force vulnerabilities such as the inherent complexity of police work, limited resources, lack of training and feeling over-scrutinised, those working in austerity-era outsourced roles may also suffer from identity crises, unwanted media attention and a particular kind of prejudice from detainees. In so doing, it makes a new contribution to the emergent literature on police outsourcing.

Outcomes-based contracts in the UK public sector

A major innovation in public sector commissioning in recent years is the recourse of the state to so called ‘Outcomes-based Contracts’ particularly Payment by Results (PbR) in the UK. A PbR contract contains three elements, a commissioner, a service provider and an outcomes metric. The outcomes metrics is designed, in theory, to align the incentive structures of the commissioner and the service delivery agency so as to achieve efficient results. Thus, PbR is theorised to allow public commissioners to pay a provider of services on the basis of specified outcomes achieved rather than the inputs or outputs delivered. A related innovation is that of Social Impact Bonds (SIBs). SIBs are distinguished from PbR contracts in that they supposedly allow financiers to contribute to the social innovation process by providing working capital. The return on the SIB is calculated using PbR methodology. Compared to a PbR contract, the SIB contract seeks to align the incentive structures, not only of commissioners and providers, but also financiers through an appropriate metrics-based payments scheme. PbR and SIBs have been referred to as key tools for delivering change. In this chapter we set out the theoretical and practical challenges arising from the development and application of PbR and SIBs and consider the evidence of their efficacy or otherwise.