Privatising public prisons: Penality, law and practice
| Published date | 01 December 2017 |
| Author | Alison Liebling,Amy Ludlow |
| Date | 01 December 2017 |
| DOI | 10.1177/0004865816671380 |
| Subject Matter | Articles |
Article
Australian & New Zealand
Journal of Criminology
2017, Vol. 50(4) 473–492
Privatising public prisons:
! The Author(s) 2016
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Penality, law and practice
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DOI: 10.1177/0004865816671380
Alison Liebling and Amy Ludlow
journals.sagepub.com/home/anj
University of Cambridge, Cambridge, UK
Abstract
In October 2011, HM Prison Birmingham was transferred from public to private management,
under G4S. This was the first time that an existing operational public prison was privatised in
the UK. The move marked the third and most far reaching phase of prison privatisation policy,
and was intended both to increase quality of life for prisoners, from a low baseline, and to
reduce costs. Prior to 2011, private prisons had all been new-builds. Private contractors had
thus far avoided the additional challenges of inheriting a pre-existing workforce and operating
in old, often unsuitable, buildings. This article reports on a longitudinal evaluation of the
complex process of the transition, and some outcomes for both staff and prisoners. As an
experiment in the reorganisation of work and life in a ‘traditional’ public sector prison, the
exercise was unprecedented, and has set the agenda for future transformations. The example
illustrates the intense, distinctive and rapidly changing nature of penality as it makes itself felt
in the lived prison experience, and raises important questions about the changing use of State
power.
Keywords
Culture, moral quality, prisons, privatisation, reform, state power
Date received: 20 March 2015; accepted: 6 September 2016
David Garland suggests that in order to explain penality, scholars should ‘attend more
closely to the structure and organisation of the penal state’ (2010, p. 476) and that we
should focus more systematically on governmental and legal processes, particularly in
explaining penal change. We agree wholeheartedly. Noel Whitty has described prison
scholars as ‘law avoidant’ (Murphy & Whitty, 2016). Other criminologists have made
similar observations (Bottoms, personal communication, 12 December 2014) and have
also called for more attention to be paid to the complex relationship between state
power, rules and behaviour (for example, Baldwin & Kinsey, 1985; Dixon, 1997 in
policing). Changing legal and other structural frameworks are impacting deeply and
swiftly on prison leadership, life, culture and quality in England and Wales (and else-
where) with insufficient attention being paid to their purposes or effects. Privatisation
Corresponding author:
Alison Liebling, University of Cambridge, Sidgwick Avenue, Cambridge CB3 9DA, UK.
Email: al115@cam.ac.uk
474
Australian & New Zealand Journal of Criminology 50(4)
and competition are the most obvious areas where the law, or formal ‘deployment of the
power to punish’ has changed (Garland, 2010, p. 21), but other associated changes to the
terms and conditions of imprisonment (e.g., benchmarking/cost reductions, changing
performance measurement requirements, and the building of larger prisons) are also
making a significant impact. These are ‘sociologically significant activities’ (Power,
1997) with serious implications for models of penal order, for the ways in which
power works, staff operate, and prisoners live, in prison, as well as for outcomes. This
case study suggests that we should add to Garland’s ambitious research agenda close and
empirical-longitudinal scrutiny of single sites as they adapt, imperfectly and with much
strain, to the changing penal field. The intense, distinctive and rapidly changing nature
of penality shows up, often dramatically, in the prison experience. Our analyses should
be focused both on day-to-day accounts of ‘how punishment feels’ and state action. The
shape and tone of prison life is being energetically crafted by state actors, not always
competently (Le Vay, 2016), with some intended and many unintended effects on those
who are subjected to it.
The changing penal state: The case for privatising public prisons
In a Report into the state and use of prisons, the House of Commons Home
Affairs Committee (HAC) identified a series of well-known problems facing
public sector prisons (HAC, 1987a): aged buildings, overcrowding, high costs and hos-
tile industrial relations. This Report was swiftly followed by a second, highly
influential HAC Report on the Contract Provision of Prisons, in which the Committee
called for ‘urgent new ways’ of tackling these difficulties and recommended, ‘as an
experiment’, the use of the private sector to construct and manage new prisons (HAC,
1987b).
Four years later, as the first private prison was due to open, Martin Narey, then Chief
Executive of the Prison Service, linked the failings of public sector prisons to morality.
At a Prison Governors’ conference in 2001, he said:
I am not prepared to continue to apologise for failing prison after failing prison. I’ve had
enough of trying to explain the very immorality of our treatment of some prisoners [. . .]. We
have to decide, as a Service, whether this litany of failure and moral neglect continues
indefinitely [. . .]. It’s a matter of caring, a matter of determination, and, I accept, not a
little courage in taking on a culture in all too many places which we have allowed to decay
[. . .]. The prize is [. . .] a Prison Service of which we need no longer be ashamed. (Narey,
2001, p. 3)
The existence of ‘failing prisons’ was a problem of courage and care as well as manage-
ment competence. The private sector was invited to lead urgent reform, and public sector
Governors were challenged to follow suit. Complex arguments about the ethical risks of
punishing for profit, as well as arguments over variations in, and measurement of, per-
formance in the public sector, were side-stepped as the moral case for cultural and
management improvements to prison operations took hold in a political context of
deep commitment to a ‘New Public Management’ agenda (Ascher, 1987; Harding,
2001; Hood, 1991).
Liebling and Ludlow
475
Some of the problems holding back change in the public sector were due to the
resistance of the Prison Officer’s Association (POA), the trade union representing
most prison staff. Whilst prison culture and quality varied significantly, many public
sector prisons – particularly those in large inner cities – were characterised by negative
and reluctant staff cultures, neglectful regimes and practices, and high costs. The reasons
for these failings were complex, and a programme of management reform including
better performance measurement had begun. Privatisation was advocated for ideological
reasons as well as a source of improvement, innovation and competition: a spur to
greater efficiency and better performance across the board.
The privatisation ‘experiment’ started with management-only contracts, and checks
on the devolution and control of delegated powers. Under s.85 of the Criminal Justice
Act 1991, a private prison Director was not empowered to conduct any disciplinary
hearings against prisoners and generally could not order the removal of a prisoner
from association with other prisoners, order the temporary confinement of a prisoner
in a special cell or order the application to a prisoner of any special control or restraint.
These functions were instead fulfilled by a Controller; a state employed contract monitor
and adjudicator (see further James, Bottomley, Liebling, & Clare, 1997). However, the
‘experiment’ quickly developed to include longer contracts incorporating the financing,
design, and management of establishments, and many of the original constraints on the
powers of Directors were loosened (see Ludlow, 2012).
In the years that followed, 11 private prisons were opened, and a series of competi-
tions for existing prisons were held. The public sector retained one contested prison in
this first round (HMP Manchester), and won one back from the private sector (HMP
Buckley Hall). At some establishments (such as the Isle of Sheppey prison cluster in
2005), internal performance improvement processes were used rather than competitive
tendering. This provoked criticism from the Confederation of British Industry (CBI) on
the grounds that expectations of new business had been raised.1 However, no bids came
in at an affordable price for the first ‘traditional/ancient’ local prison placed on the
market in 2001 (HMP Brixton). The constraints on potential bidders for HMP
Brixton included employment law requiring the retention of staff on existing pay and
conditions,2 and the limitations inherent in the prison’s dilapidated and unsuitable build-
ings. The prison was described in various reports as ‘brutal, squalid and chaotic’, and
even its Governor described it as ‘inhuman and degrading’ and said it was ‘worse’ in
2001 than it was ‘in the 70s’.3 Sickness absence among staff was high. As in other public
sector prisons, improvements were overdue, but the competition was abandoned when
the private sector could not be persuaded to bid for it. The prison has remained in the
public sector since, with few signs of improvement to its basic conditions or culture to
date, despite an improbable change of function to Category C/D resettlement prison in
2013 (e.g., Crewe, Liebling, & Hulley, 2014; HM Chief Inspector of Prisons (HMCIP),
2011).
Over the years to follow, the Government strengthened its formal commitment to
prison competition. The National Offender Management Service (NOMS) was created,
as an amalgamation of the former Prison and...
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