Government as Manager, Citizen as Consumer: The Case of the Criminal Justice Act 1991
| Published date | 01 July 1994 |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01958.x |
| Author | Nicola Lacey |
| Date | 01 July 1994 |
Government as Manager, Citizen as Consumer: The
Case
of
the Criminal Justice Act
1991
Nicola
Lacey*
Introduction
Over the last fifteen years, wider and wider areas of public administration in the
United Kingdom have become infused with a discourse hitherto associated rather
with the commercial world. The concern with efficiency, always an important one,
has come increasingly to be approached on the assumption that the imposition of a
market-type model can deliver improvements in the quality of public
administration.
I
Through full-scale privatisation, but also, more recently, via
strategies of partial ‘contracting out’ and ‘market testing,’ Government has
adopted what might be characterised as a ‘managerial approach’: one in which an
idealised image of the private sector is constantly held up as a model, to be
compared favourably with the archaic and inefficient public sector. This has been
true both in terms of Government’s own strategies and in terms of the frameworks
which
it
has imposed upon a wide range of bodies providing public goods and
services.
One striking feature of this extended market approach is that, while the implicit
goal
is
not straightforwardly profit
or
indeed necessarily exclusively financial, the
instrumentalism which characterises the approach tends
to
assume that some
relatively simple and measurable goal is being pursued. The figure of success
becomes ‘efficiency’
or
‘value for money,’ whilst the often complex and politically
contested question of what constitutes ‘value’ in a particular area is moved away
from the spotlight.2 Hence, as
I
shall argue, all too often the actual specification
of the relevant goals and values is avoided, being obscured within a discourse in
which efficiency appears to become the end as well as the means. The ideological
impoverishment which this entails is well illustrated by the way in which the
managerial model of government as a direct
or
indirect provider of services finds
its counterpart in a reconceptualisation of democracy itself. In this strand of policy
and political discourse, measurable performance indicators become the ultimate
test of democratic accountability, whilst citizenship is effectively reconstructed as
*New Collegc Oxford.
This article originated in a prescntation to a scrninar at St John’s College Oxford on Public Policy and
Public Administration in the
1990s.
My later work on it benefited from the discussion at both that seminar
and a Faculty seminar at thc University of Manchester. My
very
warm thanks are due
to
Anne Barron,
David Faulkner, Mark Freedland, Paddy Hillyard, Gillian Morris, Richard Sparks and Lucia Zedncr, who
made important suggestions about earlier drafts.
I
am also grateful to the MLR revicwers
for
their
constructivc comments.
See. for example, Audit Commission,
Economy,
Eficiency and Effectiveness:
The
Audit Commission
Handbook
on
Improving Economy, EfJiciency and Effectiveness
in
I~~cal Government
(London:
HMSO,
1984);
Public Accounts Committee,
39th
Report: The Rayner Scrutiny Programme,
IY79- 1983
(London: HMSO,
1985).
For a general appraisal and critique of thesc devclopments, see
Stewart and Walsh, ‘Change in the Management of Public Scrvices’
(1992)
70
Public Administration
499.
See Stewart and Walsh,
ibid
p
516;
Jones, ‘Auditing Criminal Justicc’
(1993)
33
Brit
J
Criminology
187-202;
Power. ‘The Audit Society’ in Hopwood and Miller (eds),
Accounting as Social and
Institutional Practice
(Cambridge University Press, forthcoming.
1994)
p
299.
I
2
Thc
Modern
law Kcview Limited
1YY4
(MLR
57:4.
July). Puhlishcd hy
Blackwell
Publishers.
108
Cowley
Rod,
Oxford
OX4
111:
and
238
Main
Streel.
Camhridgc.
MA
02142.
USA.
534
July
19941
Government
as
Manuger. Citizen as Consumer
a consumer status: a development which is perhaps best exemplified by the
Citizen’s Charter.’
In this article,
I
want to consider some of the implications of this ‘new
managerialist’ strand in governmental culture for the relationship between
Government and the courts. The relevance of the activities of courts to public
administration, and the constitutional relationship between Government and
courts, are generally thrown into sharpest focus in the area of judicial review of
administrative a~tion.~ This increasingly important judicial field has generated a
great deal
of
scholarship over the last twenty years, and neither its significance as
an arena of constitutional debate nor its political relevance to the development of
public administration should be discounted.s However,
I
want to focus on a
somewhat different area
-
one perhaps less often thought of within the framework
of
public administration,
yet
one
which certainly has a place there. The area
is
criminal justice and, in particular, sentencing; and my particular concern will be
with the Criminal Justice Act
1991
and subsequent amendments to it.
I
shall
explore
the
plausibility of a managerialist reading of aspects of the Criminal Justice
Act both with respect to the Government’s role
vis-u-vis
the courts and in terms of
the courts’ own role in sentencing.
In this area, legislation was used to impose a novel statutory framework for the
realisation
of
policy. It therefore provides an interesting focus for assessment of
the extent to which the ‘managerialist’ approach has infused public
administration.6 But it also invites specific reflection
on
the limitations of
managerialism, given the fact that
key
aspects of the legislative strategy were
reversed within months of the implementation of the Act, and yet others are almost
certain to be dismantled by the Criminal Justice and Public Order Bill currently
before Parliament. In exploring and seeking to explain these limits,
I
shall relate
the discussion of managerialism to a broader set of questions about successive
Conservative Governments’ approach to the ‘problem of law and order’ since
1979.
I
shall argue that the Government’s political stance on law and order set up a
dynamic favourable to a managerialist approach, and that important features of
that approach are that
it
obscures the political substance of the measures which it
engenders and provides a highly unstable framework for the maintenance of given
policies.
3
Sec Barron and Scott, ’The Citizcn’s Chartcr Programme’
(1992)
MLR
524-546;
Cooper, ‘The
Citizen’s Chartcr and Radical Democracy: Empowerment and Exclusion within Citizenship
Discourse’
(1993)
2
Social
and Legal Studies
149.
I
do not mcan to imply that this is thc only area
of
law
in
which that relationship comes into focus;
labour law would certainly also be included and the application of contract law to public bodies is
increasingly significant: see Freedland, ‘Govcrnmcnt By Contract and Public Law’
(1994)
Public Luw
86.
See, for cxample, Craig,
Administrative Law
(London: Swcet
&
Maxwell,
1983);
sccond edition,
1989;
Craig,
Public Law and Democracy
in
the
United Kingdom and the United Stares
of
America
(Oxford: Oxford University Press,
1990);
for critical appraisal of the importance and scope
of
judicial
review. sce Harlow and Rawlings,
Law
und
Administration
(London: Weidenfeld and Nicolson,
1984);
and Loughlin, ‘Courts and Governance’ in Birks (ed),
Frontiers
of
Liubiiity
(Oxford:
Clarendon Press,
1994)
p
1.
6
The direct relevance of the managerialist analysis here is confirmed by both the existencc and the
substance the the Courts’ Charter
(1991)
Cmnd
1599:
see
also
the Law Commission’s Consultation
Papcr
No
126,
Administrative kw: Judiciul Review and Statutory Appruls
(London: HMSO.
1993).
which constructs cconomic cfticicncy as a ccntral concern in thc formulation
of
reform proposals; cf
Loughlin,
op
(it
n
5,
at p
110.
(1)
The
Modern
Law Revicw Limited
1994
4
5
535
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