The failures of the last government mean Labour had no good prisons options

Frequent headlines about crises in our public services have begun to lose their bite. But the situation in prisons is so severe that it threatens the functioning of the whole criminal justice system. Court hearings have already been delayed and police cells are clogged up with prisoners with nowhere to go. Without decisive measures, the prospect of police being unable to make arrests or hold people in custody is very real – and imminent. 

In this context, the justice secretary’s announcement today is welcome. Shabana Mahmood announced that some prisoners serving standard custodial sentences will spend only 40% of their sentence in custody, with the remainder on licence in the community. This is probably  inevitable to stave off system collapse – our report last week on the prisons crisis did not find any other options that could provide enough capacity quickly enough without more serious risks to the public. The new government is in a deeply unenviable position. But the risks of being unable to make arrests or detain people in custody are substantially greater than limited early release.

These emergency measures reflect a total failure of politics and policy on prisons under the last government

It is the profound failure of recent governments to grapple with problems in our prisons that have left us in this situation, and it is unforgiveable that we have reached this point. Whatever your position on the correct use of prison and how long sentences should be, immediate crisis management is no way to make good policy. Nor is it fair on victims, prisoners and the families of both. What makes this situation particularly damning for previous governments is that successive prime ministers and justice secretaries have failed to address a problem that had long been identified. In some cases, they have only made it worse by increasing sentences without delivering the necessary extra prison capacity. 

By at least 2015, it was clear that demand on the prison system was set to far outstrip available places and conditions in prisons were deteriorating. The May government launched the Prison Estate Transformation Programme in 2016, promising 10,000 new spaces by 2020. But poor management and chopping and changing of funding led to a comprehensive failure: just 206 places were delivered. ⁹ NAO, Improving the prison estate, https://www.nao.org.uk/reports/improving-the-prison-estate/  This left prisons at 98% capacity by 2019. Since then, problems have continued. Basic maintenance has not been done, with over 2,700 spaces lost to dilapidation since just 2019. ¹⁰ Argar E, Letter to Sir Robert Neill, Parliament, 1 May 2024, retrieved 8 July 2024, https://committees.parliament.uk/publications/44647/documents/221863/default  While around 5,600 new prison spaces have been delivered since 2021, this falls far short of the 20,000 promised by the end of 2025, and even further short of what would be needed to accommodate the growth in prisoners.

The only reason we haven’t reached an immediate crisis point sooner is because of failings elsewhere in the criminal justice system. Collapsing charge rates and many fewer convictions meant the prison population did not grow as rapidly as projected, even as sentences became longer and the number of community sentences plummeted. But the time that bought has now run out, and with the impact of 20,000 new police officers starting to be felt in the number of charges, pressure on the system is only increasing.

The responsibility for this mess lies with former ministers. But it poses a question about role of the civil service. While civil servants were advising strongly that action needed to be taken sooner, ministers and prime ministers chose not to act. The recourse for officials in this situation is limited. In some circumstances, permanent secretaries can request a ‘ministerial direction’, an instruction from their minister to implement a spending proposal despite an objection from the permanent secretary. But ministerial directions apply to the spending of public money, rather than the situation faced by the Ministry of Justice on prisons: the failure to spend money or change policy to address a growing crisis. The government should look at whether other mechanisms are needed to ensure there is a public record of the risks at play in situations like this one. 

The new government had little choice in how to manage the urgent crisis, but has bought itself some time to drive reform

Given the position we are in, the new government had little choice but to implement some form of early release. The scheme set out is a sensible one: lowering the point of automatic release to 40%, rather than a smaller drop to 43–45%, makes it possible to exempt prisoners who are more likely to be a risk or have committed more serious offences. These carve-outs will make the scheme more difficult to implement and will inevitably not catch all those the government wants to exclude, but should reduce the risk to the public and the damage to public confidence. Lowering the point of early release can be implemented quickly and relatively smoothly in comparison to some of the other high-impact options we identified, such as introducing a queuing system to enter prison. And it should also create enough breathing room to develop a longer-term plan – which is absolutely critical to make sure we don’t end up in the same situation in 12 or 18 months’ time.

The government has already set out the first steps in that longer-term plan. Recruiting 1,000 new trainee probation officers in recognition of the impact prison capacity measures will have on the probation service is very welcome, as is the commitment to publishing a 10-year capacity strategy for the prison system.

Labour will have more room to manoeuvre over the longer term. But their options are still quite limited by what has already been baked into the system over the last 15 or 20 years. They committed during the election campaign to delivering the remaining 14,000 prison places of the 20,000 promised by the Conservatives in 2021, but only 4,400 of those are due to come online by December 2025, and it will prove hard to speed that up. Prison building is also enormously expensive, politically complicated, a  nd has high ongoing costs even once they are up and running. So whatever the pace or progress, Labour is likely to need to reduce the number of people entering prison and how long they stay there. The sentencing review promised in their manifesto and the appointment of James Timpson as prisons and probation minister suggest they recognise this reality, but they will have to face down significant political pressure if they are to stay the course.

The Conservatives will aim plenty of fire at Labour for these measures, as Robert Jenrick has recently done in The Telegraph. ¹² Jenrick R, ‘Resist Labour’s surrender to criminals with every sinew’, The Telegraph, 8 July 2024, retrieved 12 July 2024, www.telegraph.co.uk/news/2024/07/08/resist-labours-surrender-to-criminals-with-every-sinew  But the true allocation for blame lies much closer to home. The situation is the result of major political failures – but of previous governments, rather than the new one.