The game changer

June saw two very significant speeches by government ministers on criminal justice. Justice Secretary Ken Clarke and Nick Herbert, Minister of State for policing and criminal justice, signalled a major change of direction on law and order after almost two decades of ballooning prison numbers and an ever more expansive penal system.

With talk of 25 per cent cuts to departmental budgets, radical thinking is required across Whitehall. Clarke and Herbert certainly appear to be up for that when it comes to criminal justice.

While Clarke's speech received the most press coverage, Herbert's made the case for reform in more detail. 'Too often', he said, 'we've assumed that success equates to size'.

Herbert pointed out that the criminal justice system already costs almost £20 billion a year, making it one of the most expensive criminal justice systems in the world. More of our GDP is spent on law and order than France, Ireland or Italy.

By attacking the size of the criminal justice system, Herbert was attacking the numbers game played by successive governments: 'The test of an effective police force is not how much it costs or the number of police officers it employs. The test of an effective courts system is not the number of court buildings.

'The test of an effective penal system is not the number of offenders in prison. The test of ensuring access to justice is not the same as the size of the legal aid budget.'

One might reasonably object to some of this in detail '“ the claim that access to justice is not directly linked to the legal aid budget in particular appears questionable '“ but the essential point is undoubtedly true. Equating a safe society with record police numbers and an ever-mounting prison population is simply wrong. Indeed, lasting solutions to crime are more likely to reside outside of the criminal justice system.

While Herbert's speech was a forensic critique of New Labour's policies, the game changer for criminal justice came from Ken Clarke a week later. Clarke was characteristically blunt - prison was too often a 'costly and ineffectual approach that fails to turn criminals into law-abiding citizens'. It was 'virtually impossible to do anything productive with offenders on short sentences.'

On Radio 4's Today programme the morning before his speech, Clarke accused previous Home Secretaries David Blunkett and John Reid of posturing with the 'cheque book in one hand and the Daily Mail in the other'.

By so robustly shifting the rhetoric away from the 'tough on crime' mantras of successive justice and home secretaries, Clarke has changed the terms of debate and opened up political space for others to follow.

All this is most welcome, and the Howard League joined many others in welcoming the coalition government's embrace of a penal reform agenda. But it is important to air some provisos.

Cautious steps

First, Clarke made it clear that he did not have a 'competitive objective' to lower the prison population. But lowering the prison population is what he is going to have to do to save money. In fact, Clarke will have to go further and close prisons if he is to release significant funds.

Simply lowering the population to ensure a reduction in overcrowding will not have much impact from a financial point of view.

Second, it is all very well to identify that money has been spent ineffectively. It is another to deliver effective reform while at the same time pushing through cuts of up to 25 per cent. A safe society may not be something that can be reduced to a numbers game, but at the same time nothing comes for free.

If the coalition does not ensure that a sufficient proportion of the money they save from closing prisons is not reinvested in the community then they are asking for trouble. For example, the probation service cannot be expected to effectively supervise a vastly increased caseload without adequate funding to deliver what is required of them. But then it may not be the probation service that receives the necessary investment, which brings me to my next point.

Third, Clarke's 'rehabilitation revolution' is to be founded on payment by results, with the private and voluntary sectors expected to work with individuals who offend and be paid on reducing their reoffending. The details of this are very sketchy indeed. It is unclear how easy it will be to link whether a particular person reoffends to a particular intervention.

Eschewing the tried and tested approach of the statutory probation service might bring innovation, but will also likely bring its fair share of failure. And for charities in particular, with their small cash reserves, it is unclear how they can operate in an environment where payment comes at the end of a lengthy process of performance and assessment.

Finally, Clarke's focus on short prison sentences is all well and good. They are grossly ineffective and should be abolished. But despite the fact that two thirds of those who go in and out of prison across the whole year will be on short sentences, in reality only 11 per cent of the prison population on any given day will be short sentenced prisoners. Much more politically difficult will be tackling the issue of sentences getting longer and the disastrous indeterminate sentence for public protection.

The road ahead for the new justice secretary is therefore likely to be a rocky one, and the destination is uncertain. But it does represent a positive turn away from the dead end policy of locking more and more people up simply for the sake of it.