Sunday, October 30, 2011

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.


Dan Hardie said...

This is completely wrong: ' 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.'

I took part in some very heavy fighting, and saw precisely one Javelin fired, once permission had been received on the radio net from the company commander. No other Javelins were fired by the units I served with. The restrictions on use of force out there are severe: the idea that any private soldier can just decide to fire off an anti-tank missile when he feels like it is a fantasy. If one tried it, he'd get filled in by his section NCO and charged by his commander. On the other hand, a guy I served with in the Irish Guards got an official commendation for holding his fire when under attack from the Taliban, a decision he made because his rounds might have hit nearby civilians.

I never saw anybody in a rifle section carrying a Javelin on his back, and as I was patrolling up to three times a day in a six and a half month tour, I would have noticed such a thing. A Javelin weighs forty pounds, and a rifleman in Helmand will be carrying at least eighty pounds of other gear and usually more. The Javelins used to be mounted to the Jackals that would provide fire support. Again, it's a fantasy to suppose that a soldier can fire off ammunition in order to lighten the weight he carries- it's something I never saw, although I was in plenty of contacts. I used to worry that if I fired off too many rounds the first time they bumped us, I wouldn't have enough if they came back for a second go, as they often did.

yorksranter said...

Dan: you're probably right, but in my defence, the original source is here, who quotes Lt-Col. Rupert Jones. I think it refers to 2009 or possibly even earlier.

The detail is probably "si no vero, ben trovato" although I think the numbers are at least in the right football field.

Dan Hardie said...

I spent Thursday night drinking with a bunch of Army officers who had served in Iraq and Afghanistan, and they did sometimes say things that were a bit sloppy, or exaggerated for rhetorical effect. They did tighten their statements up a couple of times when I said 'I was there too, and I don't think it happened that way'. I have to say that Jones's remarks seem to me to fall into that category, and if I'd been in his audience I would certainly have challenged him. On my tour, on which I patrolled with elements from four separate infantry battalions on a daily basis, the firing of Javelins 'at will' simply didn't happen. In the units I was with, there was no chance that the officer or NCO in charge of a patrol would just casually give a forty pound weight to a soldier to carry on patrol and then equally casually accept him 'firing it off at will'. I actually doubt that, given conditions on the ground, things were much different on earlier tours. The suggestion that soldiers were firing them to get rid of weight comes not from Jones but from a US Army officer. I suspect that most or all Javelins were fired either from the walls of bases or from vehicle mounts.

The use of so much heavy ordnance in Afghan towns and villages was a grotesque failure, but it almost certainly didn't happen for the reasons that Jones's casual remarks imply. A lot of Javelins were fired for the same reason that a lot of 500lb bombs were dropped- there was a strategically mad decision to occupy a lot of villages and towns across Helmand with a tiny number of troops, who were subsequently besieged and would have been over-run if they hadn't loosed off a lot of ordnance. Added to which, the mud walls of Afghan compounds are resistant to anything but a lot of high explosive. See, for treatments of the same subject actually based on detailed first-hand knowledge, Frank Ledwidge's 'Losing Small Wars' and Jack Fairweather's 'A War of Choice', which covers Afghanistan as well as Iraq.

Jones, btw, is a friend of a friend of mine. Next time we meet up, remind me to tell you the story about Rupert Jones and the Para Reg NCO.

stevo said...

The main flaw with your plan is that there is nothing then to stop the judges letting everybody off, saving heaps of money

Shackleford Hurtmore said...

Surely, the customer being offered "Choice" should be the victims? A victim of crime could call between a choice of numbers (the numbering change would have to be handled as smoothly as what the 118xxx changes went - something like 999xxx, with private sector police forces bidding to see who can get the most memorable 999999 number).
Then, a police officer from the selected police force would attend. The police forces would be free at "point of use" but funds would be distributed based on call volumes and maybe some outcomes.

Once the selected police force have investigated, they would offer the Victim/Customer details of what offences they have enough information to prosecute, and offer the Victim the choice of which charges to progress; the Victim would then take that case file to one of multiple Crown Prosecution Services to deal with - there would be a Quango to offer Victims comprehensive league tables of the most successful prosecutors, and the Victim can then choose the Prosecutor they want, who in turn can choose the Court they want to put the case in front of...

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