“Not a proper society”: the privatisation of law and justice

07 June 2013

By John Medhurst

The privatisation plans of the Coalition are becoming disturbingly close to the plot of a dystopian science fiction novel.

In Peter F. Hamilton’s Science Fiction novel Great North Road, which follows a murder investigation in the Newcastle of 2143, there is an all-too plausible vision of the future. While the detectives remain public servants, all around them is privatised. Following a murder, different forensics companies quote for business, the legwork is performed by “agency constables” (who are not very professional) and the police spend as much time on “Contracts and Implementation” as they do on solving crime. The murder trail takes them to a “GSW” (Government Services Withdrawn) area of the city, which because of the breakdown of social housing and amenities has been abandoned by the authorities. Those who live there receive no health, education, transport or infrastructure services. In the GSW, there literally is no such thing as society.

Unfortunately the only unrealistic aspect of this dystopian prospect is that we could easily be there by 2043, not a century later, if the trend towards mass privatisation of the UK’s justice system is not exposed and reversed.
The latest proposals to privatise the Her Majesty’s Courts and Tribunals Service (i.e. the buildings and staff, with the exception of the Judges and Magistrates, who are completely opposed to the idea) and establish them as a commercial enterprise were drawn up by the management consultants McKinsey. They exemplify the contempt the Tories have for any concept of disinterested, non-profit-making provision of core state services for all citizens. The plans are that the courts service would be established as a commercial enterprise, with funding generated by bigger fees from wealthy litigants and private sector investment.

The implications are dire. Court staff with serious public responsibilities will be employed, underpaid and demoralised by firms seeking to undercut each other, and the administration of justice will suffer. The wealthy litigants paying more than others will surely look for returns on their money – speedier cases, softer judgments. As they literally come to support the courts system, who will refuse them? Additionally, the big public service providers like Capita and G4S who will probably win contracts to run the courts, will sometimes be defendants in legal cases or employment tribunals brought by individuals or public bodies such as the Health and Safety Executive. How will they handle the conflict of interest?

Many of those firms may even be running the police forces that bring the case to trial. David Taylor-Smith, Head of UK G4S, which spectacularly failed to deliver Olympics security, has predicted that, within 5 years, private companies will be running large parts of the UK’s police services, ranging from investigating crime, to transporting suspects and managing intelligence and evidence. G4S is a prime bidder for the massive £1.5bn outsourcing of police services in the West Midlands and Surrey, including detaining suspects, developing cases and supporting victims, as well as support functions such as managing vehicles, finance and HR. The Thames Valley, West Mercia, Staffordshire, Gloucestershire, Wiltshire and Hampshire police forces have now started tendering to outsource the running of custody suites and cells.

The other essential adjuncts of the administration of justice – forensics and prisons – have already succumbed. The Forensic Science Service was first turned into a GovCo (Government Company), to operate to commercial imperatives. When that failed, it was delegated to Police Authorities and outsourced to a variety of providers. The UK is now the only major industrialised country in the world without a nationally maintained forensics service, and 75% of forensics scientists believe that miscarriages of justice are now highly likely.

The UK already has the most privatised prison system in Europe. In England and Wales, 15% of the prison population is held in private prisons (in the US it is 9%). Private prison contracts in England and Wales are shared between just three companies – Serco, Sodexo and G4S. Costs are usually higher and reoffending rates worse. Serco has a 26-year, £415m contract for running the high security Belmarsh prison. Profits are made from paying private prison staff substantially less; in 2011, the average salary for private sector prison officers was 23% less than public sector officers. Contracts for Moorland, Hatfield and Lindholme prisons were combined as a South Yorkshire private sector prison cluster and put out to tender last year. The public sector HMPS was excluded from bidding.

There is now a very real prospect that within a decade we will live in a country in which private police will help investigate crime, private forensics services will manage the evidence, cases will be tried in privately run courts, and some will then end in a private prison. Justice will be a commodity to be contracted out and eventually – like all privatised services, like all commodities – those who can afford it will have versions tailored to their needs.

Nearly exactly 800 years ago Magna Carta declared that “We will sell to no man, we will not deny or defer to any man either Justice or Right”. In that spirit, Maura McGowan QC, Chair of the Bar Council, said of the government’s plans to privatise the Courts that “Courts are so much part of the justice system that they ought, in a proper society, to be administered by Government as a public institution”. Today’s Conservative Party will have none of that, and unless they are stopped the UK will rapidly cease to be a “proper society”.