After HMP Inverclyde: where power lies in Scotland’s penal reform debate

Mike NellisMike Nellis considers the wider challenges of penal reform in Scotland and in particular the implications for women who are affected by the justice system, following the HMP Inverclyde decision. His comments are prompted by the SCCCJ seminar held earlier this month. Mike, is a Professor Emeritus with the Law School, at the University of Strathclyde, but attended the seminar on behalf of the Joint Faiths Board on Community Justice.

The Women in the criminal justice in Scotland – what next? event, recently organised by SCCCJ (the Consortium), provided an excellent re-statement and clarification of the issues surrounding the proposed reduction in the use of custody for women in Scotland – if indeed that is what is still being considered by the Scottish government. The discussion produced many useful “ideas for action”, not least about diverting women from prosecution and thereby starving sentencers of the opportunity to use custody. Nonetheless, I think the event left participants with more ambivalent concerns than they started with, and with some scepticism as to whether the Angiolini agenda was still actually on the table.

Two different “response strategies” seemed called for by the end of the event – the intended one, to supply the Scottish Government with further practical suggestions about a way to implement the Angiolini report, and a newer, less choate and more uncomfortable one, concerning the way in which the diverse organisations represented at the event might navigate around the two elephants in the room – a) the continuing Scottish Prison Service (SPS) domination of the debate on the future of women offenders and b) the power of the sheriffs/judiciary to exempt themselves from democratic debate on policy as and when they choose. These “response strategies” may overlap – indeed ought to overlap – but it is probably not in the immediate gift of the Scottish Government to take on the overweening influence of SPS or the lofty, institutionalised insularity of the sheriffs, not on the available timescale and they may need help from outside voices.

In the aftermath of the ministerial decision not to proceed with HMP Inverclyde I think there was an expectation among penal reformers that SPS would show a little humility and step back from the following phase of the debate, in order to give the supporters of the Angiolini agenda time to organise themselves into a coherent movement for the promotion and creation of new forms of community justice centre. That seemed to be the logic implied by the minister’s decision. Instead, SPS has continued to dominate the subsequent stage of the debate and ensured that the focus has remained on custody rather than the more difficult, new, issue of how to design, fund and sustain community justice centres, or just better services for women offenders, in different parts of the country. Alec Salmond may famously not have had a Plan B during the referendum, but SPS certainly had one to fall back on after Inverclyde was cancelled! There is furthermore, a persistent perception that, despite all the post-Inverclyde consultations that have taken place, SPS still seems to be the body that the government is listening to most attentively, the one with apparent common sense and credibility on its side.

If SPS continue to impose themselves as the pacesetters of debate on future responses to women offenders – and only the government can rein them in and level the playing field – we could, ironically, as was said at the event, finish up with even more custodial places for women, dispersed around Scotland, than were envisaged when Inverclyde was the centrepiece of the SPS strategy, and at greater cost.

Imbalances of power and influence among the bodies that shape penal policy are nothing new, but seem to have become more visible and somewhat more fateful at the present moment in time. This unexpected exposure of where power lies – or more accurately, this facing up to well-suppressed truth and its implications – is a good and long overdue thing. There is a risk in the first instance – the place we are now – that simply seeing the scale of what one is up against may produce despondency among reformers that the traditionally powerful players will remain the powerful players no matter what, and that possibilities for progressive penal change will be a good deal less than anticipated. But in the long run it is better to be clear-eyed about where you – and others – stand. SPS is, and always has been, far better resourced and far better organised than the cluster of bodies that want to see a reduction in the use of imprisonment for women – Community Justice Authorities, third sector organisations, penal reform groups – which are, by their nature, loosely organised and without clear collective leadership. SPS jumped the gun with its misguided plans for HMP Inverclyde, pre-empting wider discussion, and presenting the 300-bed prison as being in the spirit of Angiolini’s report when it was anything but. How the Scottish Government ever came to endorse HMP Inverclyde remains a mystery, except in the sense that no-one came up with a more tangible and credible alternative strategy before SPS seized the opportunity and prematurely made their pitch.

SPS’s own progressive vision of desistance-based, community-facing prisons has much to commend it and the excellent work done by its frontline staff must not be derided. SPS have nonetheless proved themselves decidedly ambivalent towards Angiolini’s radical prison reduction agenda, despite lip service to the contrary, and seem utterly bereft of a strategy that could contribute to it. The credo that more people could be successfully reformed, once and for all, never to return after release, if only they were sent to good, well resourced prisons has always fired the imaginations of liberal prison services, but history has disproved this gambit time and again, and SPS should be wary of re-inventing it.

It is better, if always politically more difficult, to reduce prison use than to systematically reinvent prisons, but the two strategies can (and should) be combined to create the best of both worlds – parsimony in the use of imprisonment and correspondingly more resources for the remaining prisons, housing those for whom no lesser penalty is feasible or desirable. As a specialist public institution, with its own interests, budgets and prestige to protect, and an engrained habit of superiority in penal debate, SPS is inveterately “prison centric” in its view of the future, but its “imperialist” attitude towards the future size of the women’s prison estate, based on its projected estimates and common sense understanding of future sentencing patterns, needs to be checked, sooner rather than later, in order to create political space for the Angiolini vision is to be realised.

The power of the sheriffs/judiciary to exempt themselves from democratic debate on penal policy is an old one in Scotland and despite some hints that it was coming to an end, it seems to have reasserted itself at the very moment when it is most needed, when the fundamentals of community justice are being reconfigured. This has happened despite the evident willingness of some sheriffs to participate in thoroughly constructive ways, but the very ad hocness of this is an insecure base on which to build policy. Individually, well informed sheriffs can and do offer wise counsel when required or requested but their institutional aloofness from government has altogether more problematic consequences for penal policy-making.

The basic relationship between judiciary and executive in Scotland was set in place in a pre-democratic era, when the class from which sentencers were routinely drawn still took for granted their right to rule, and deliberative policy-making barely existed. While the separation of powers has many merits, aspects of this arrangement are long overdue for reform. On the entirely spurious grounds of protecting their judicial independence (which is indeed vital at the point of sentence), sheriff’s can still easily disregard and subvert policy that that they have had no hand in making – have chosen to have no hand in making – and as the Scottish Government must know, there is no possibility of even having a strategy for reducing the use of custody for women if sentencers are not, in the end, on board with it. Cynically, realistically, SPS realise this, and plan accordingly, but could in principle be weaned away from this if government was more directive with them. Government, however, has no real leverage over the judiciary, other than “hit and miss” attempts at winning sheriff’s “hearts and minds” on particular issues at particular times, and this is a key reason why Scotland continues to have an embarrassingly high rate of imprisonment compared to comparable European countries.

The timescale for progressive penal change for women offenders in Scotland is limited. A viable strategy for reducing the use of custody, for developing diversion schemes and for creating new variants of existing community justice centres must be set in place before the 2016 election. There is insufficient time for the loose assemblage of organisations who want reform to become much better organised than they are at present – although the CJA’s could, and hopefully will, exert stronger leadership on their collective behalf in the short time available. All the evidence of what works best with women offenders is already in their hands, and all the issues of principle were settled in the Angiolini report.

The Consortium and the Howard League Scotland could continue to play a leadership role in this too, although momentum must lie with the practitioners who will ultimately own and run the new system. Nonetheless, in present circumstances the loose assemblage of reformers cannot realistically become a credible counterweight to SPS. So one has to hope, therefore, in the interests of getting things done over an all-too-short short timespan, that SPS will reconsider its position and of its own accord, or with a nudge from government, take a back seat in evolving debates on the way forward, to give other, inherently weaker organisations the necessary room to manoeuvre. The question of what form custody for women should take post-Inverclyde undoubtedly matters, so SPS has to be there, but it does not matter more than any other aspect of the Angiolini agenda.

If progressive penal change for women offenders in Scotland were simply a matter of mutual goodwill and constructive dialogue between informed and concerned parties it would surely have been accomplished by now. There is little in the Angiolini agenda that was not prefigured in A Safer Way* and A Better Way but in terms of understanding why these earlier, powerfully-argued, reports had so little impact a collective amnesia seems to prevail, a wilful blindness to the inertia which neutralised them and to the interests which quietly opposed them. There is a surfeit of empirical evidence on the psychological needs and precarious lives of women offenders, which has indeed played a vital part in redefining the imprisonment of women in Scotland as primarily a question of social disadvantage rather than primarily a penal question, but there is a dearth of equally necessary empirical evidence on how penal policy is actually made and implemented, and on explaining the failure of well-intentioned penal initiatives in the recent past. Notwithstanding the current reconfiguration of community justice, we have more fingertip knowledge about changing the behaviour of problematic individuals that about changing the structure of problematic institutions. Effective penal reformers always need both.

If the Scottish Government can take on the challenge of a) SPS dominance of debate and b) the sheriff’s self-exemption from policy debate – the twin pillars on which Scotland’s high prison population rests – all well and good, but if not, voices need to be raised outside government, but still within legitimate circles of influence. For better or worse, penal debate can only be pursued non-confrontationally and pragmatically in Scotland, but so long as that debate now takes on the hitherto too uncomfortable questions about where power lies, and does so in a determined and sustained way, some good may still come. Unless it is done, this time, on this issue, there are actually no compelling reasons for believing that the long-term fate of the Angiolini Report will be any different to that of A Safer Way.

* Social Work Services and Prisons Inspectorate for Scotland (1998) Women Offenders – A Safer Way: A Review of Community Disposals and the Use of Custody for Women Offenders in Scotland. Edinburgh: Scottish Office.
Scottish Executive (2002) A Better Way: The Report of the Ministerial Group on Women’s Offending. Edinburgh: Scottish Executive.

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