Nigel Farage has work to do but at least he understands that the status quo is unsustainable
The law and order policies announced this week by Reform UK leader Nigel Farage were immediately criticised for being impossible to implement and prohibitively expensive. Yet these lines ring hollow given that the political class has talked tough on crime for years, whilst cutting police numbers and pushing the criminal justice system to the point of collapse. With the public scoffing at claims that crime is at historic lows, Reform is tapping into a rich seam of discontent and their proposals deserve serious consideration.
Reform’s pledges roughly fall into three areas: (1) increasing police numbers and prison places (including by deporting foreign criminals); (2) reducing police and prosecutorial discretion to deprioritise certain offences; and (3) tougher and fairer (i.e. consistent between different groups and types of offence) prison sentences. Clearly some of these are operational changes which will require reprioritisation or additional expenditure, but we should first consider the prerequisite legislation.
Parliament regularly passes Criminal Justice Bills, usually to implement specific pledges, but Reform’s would need to be wide-ranging, pre-planned, and fit with their other policy priorities. Many of these legislative changes will be relatively straightforward. Repealing hate crime legislation (including the “stirring up racial hatred” offence for which Lucy Connolly was prosecuted, and ending the recording of “non-hate crime incidents”) and the Public Sector Equality Duty under the Equality Act (which requires the police to promote good relations between different races) would help address the widespread perception that the police protect favoured minority groups. Equally, repealing “malicious communications” and “misuse of a public electronic communications network” offences would stop the police having to make highly subjective judgements about online speech.
To toughen sentences for repeat offenders, the Sentencing Council (a quango created in 2009 to produce sentencing guidelines) would need to be abolished and responsibility for sentencing guidelines returned to the Justice Secretary. When politicians talk up tougher sentences they are generally referring to maximum sentences set by legislation, but for the most part actual sentences are down to judges, who weigh up the differing mitigating and aggravating factors contained in Sentencing Council guidelines. Abolishing the Sentencing Council could be part of a general crackdown on the establishment’s bad habit of pretending highly political decisions are actually technical and then outsourcing them to quangos.
Trickier changes would include the actual mechanics of leaving the European Convention on Human Rights and repealing the Human Rights Act to ensure foreign criminals can be deported to their home or another country during or after their sentence. There are also differences between early release and deportation of foreign prisoners (without reincarceration), foreign prisoners serving part of their sentence in their home country, and foreign and British prisoners serving British sentences in an unrelated third country (like El Salvador). The latter will pose the most procedural difficulties.
Reducing police and prosecutorial discretion would also be a challenge. On the latter, currently the Crown Prosecution Service (CPS) will consider whether there is a realistic prospect of conviction before going on to consider whether prosecution is in the public interest. Whilst some prosecutorial discretion will always be a feature of the system, given the public do not currently trust the authorities to investigate or prosecute some types of crime, there is a good argument for change here.
Tightening the public interest limb of the test in law or guidance for some offences cannot, however, be done in isolation, given police and CPS resources will always be limited. You would have to be very clear about what else is being deprioritised. This could therefore form part of a fuller criminal justice strategy under which the police spend less time on diversity and community relations, investigating things that are patently non-criminal, and providing mental health response services.
Hand-in-hand with the legislative changes will be logistical challenges: building 12,400 new prison places in short order, recruiting 30,000 new police officers and additional prison officers, the operational aspects of sending foreign prisoners abroad, and turning around our dysfunctional criminal court system. Reform’s costings are already being disputed, and Labour’s line of attack about “fantasy economics” will be repeated often as Reform fleshes out its policy platform.
The way Whitehall accounts for public expenditure is broken and has been for a long time. Departments are incentivised to balance current spending in a way that discourages short-term costs that would yield longer-term savings, and encourages punting beneficial investment spending into the long grass. This has been exacerbated by Labour gold-plating the role of the Office for Budget Responsibility. Government also spends a lot of time pointlessly moving costs between different departments, although Reform using the defence estate offers obvious efficiencies given its size and the fact that the armed forces operate their own (very successful) corrective centre in Colchester.
Nigel Farage’s proposals will be welcomed by many in a country increasingly tired of creeping lawlessness
However, any incoming Government will have to adhere to the current budgetary architecture for the foreseeable future. Reform wants to reduce the average cost per prisoner to part-pay for these changes. The better way through challenges about the sums adding up is to talk about savings in the context of an overall vision for paring back the state. Here, that means asking hard questions about what the police’s role should be. For example, how much time should police spend investigating social media posts? Or on quasi-medical call outs? What is the cost to the criminal justice system of persistent offenders who take up enormous amounts of police and court time but we neither incarcerate nor (if foreign nationals) deport?
Reform have further work to do to prepare a fundamental overhaul of Britain’s creaking criminal justice system, but Nigel Farage’s proposals will be welcomed by many in a country increasingly tired of creeping lawlessness.
