Law and order in the 'New' Britain

Bill Bowring
From Soundings special issue 1997

Robin Blackburn has described Labour's victory as 'Blair's Velvet Revolution'.1 Indeed, the new government has surprised even the most sceptical with its reforming zeal, at least in the range and rapidity of new measures. Thus, foreign policy is now to be focused on human rights as well as international development on tackling poverty rather than promoting the free market. Constitutional reform includes incorporation of the European Convention of Human Rights, as well as devolution in Scotland and Wales. Attitudes to Europe have been transformed: accession to the EU's Social Chapter has been accompanied by the less widely noticed but no less significant signing of the Council of Europe's Charter of Local Self-Government. Martin Jacques and Stuart Hall, writing before the election, posed the question 'Tony Blair: the greatest Tory since Margaret Thatcher?' Are there now grounds for revising that expectation?
Some analysts, LSE Director Anthony Giddens among them, believe that Tony Blair, with his huge majority, now has the opportunity to 'pioneer a political philosophy that could influence the rest of the world'.2 Giddens defines this as a 'third phase' (following the Keynesian welfare state and Thatcherism): a 'centre-left project', combining a long-term perspective in economic policy, education and investment, underpinned morally by 'an emphasis on the traditional family, moral education and to some extent a substituting of new obligations for rights.' This analysis is, of course, consistent with Giddens' view that the distinction between left and right politics no longer signifies, that there are radical problems which demand radical solutions for which wide cross-class support can be built. There is also his thesis that globalisation entails a 'risk society' in which a 'positive acceptance of uncertainty', and the ability to make successful 'investments in life' are as essential to personal as to national prosperity. Even Blackburn refers to the 'radical and hopeful note' struck by a number of cabinet ministers in their early speeches. But Blackburn also points to the
disquieting strain on New Labour politics that could easily curdle the hopes which have now been aroused, namely its personalism and authoritarianism. New Labour has often seemed to exult in populist appeals for punitive measures - curfews on young people, the harassing of beggars, 'zero tolerance' and the like. This 'tough on crime' approach often entirely eclipses the supposed corollary of tough on the causes of crime.
What better area in which to test these fears than Labour's attitude to crime control and law and order Labour has inherited, in addition to its £200 billion financial 'black hole,' a sad context for crime control and law and order policy. As Blackburn notes, during the Thatcher period Britain became one of the most unequal of the advanced capitalist societies. Unemployment may be low by western European standards, but the poorest tenth of the population are actually 13 per cent worse off in 1997 than they were in 1979, while the richest tenth are twice as well off. A recent OECD survey put Britain in 17th place out of 21 member states in the proportion of Gross Domestic Product spent on social security, health and education.

Not only are the poor increasingly excluded from active citizenship; more and more poor/people are excluded from society altogether. Michael Howard s 'prison works' strategy, launched in 1992, achieved a new record just as he fell from power. On 29 April 1997 the prison population in the 135 prisons of England and Wales passed the 60,000 figure - 60,012, of whom 2,580 were women. That is an increase of 50 per cent in the last 5 years. From mid-April 1996 to May 1997 the prison population rose by 6000, or 11 per cent. From the start of Howard's policy in 1992, the increase was 40,606 prisoners, or 48 per cent. In a context where the weekly increase is of the order of 250 prisoners, 29 April also witnessed an announcement that the Home Office is seeking sites for 12 new jails.
Young people - many of whom did not vote in the election - are disproportionately represented in the prison population. There are more than 10,500 prisoners aged less than 21. In a recent survey, half of all young men and a third of women aged 14-25 admitted to having committed a crime.
Britain's prison population is the highest per capita of the general population in western Europe, but, as in so many other respects, British experience is in some respects only somewhat ahead of a more general trend. At their recent 10th annual conference, at the Council of Europe in Strasbourg, the Directors of Prison Administration of the then twelve EU states noted an 'internationalisation in European penal practice. There was in all countries a general increase in the numbers of people sent to prison, an increase in sentence length, a parallel growth of prison and alternatives to prison, the toughening of alternatives, the proliferation of new penal sanctions, and an erosion of welfare and educational facilities in prison systems. Traditionally liberal states such as the Netherlands and Sweden have moved in similar directions. There are also disturbing statistics which show that much of the rise in prison population has to do with exclusionary policies of immigration control. For example, the numbers of foreign Nationals in European prisons in the 1980s rose by 297 per cent in Spain, 118 per cent in Portugal, and 102 per cent in Luxembourg. In Belgium, France, Switzerland and Luxembourg, more than a quarter of the prison population is composed of foreign nationals, many of them in prison for breaches of immigration laws. In France, 85.5 per cent of new offenders are charged with public order offences, of which about half are immigration related.
In Britain, the increased use of prison as punishment and deterrent also reflects increased public concern. A study published in May 1997 (the 1996 International Crime Victimisation Survey) concluded that English and Welsh society is 'one of the most pressurised by crime'; England and Wales are top of an international crime league of 11 countries including the US. The statistics show that residents are more likely to become of victims of crime, be burgled, or have their car stolen, than any other country in the survey. They also face as much risk from more serious crimes, including robberies, assaults and sexual attacks, as people living in the US.
It follows that the new government has more than the legacy of Howard to deal with - and there is without doubt a change of emphasis and a new language in this area, not least in relation to immigration, as noted below. The question is whether New Labour is also capable of a decisive turn away from policies of increasing social exclusion.

The Queen's Speech had nothing to say about prison policy, and only a few words on law and order. But on 12 June 1997 Alun Michael, the Home Office Minister, put some flesh on the bones in his speech to the Local Authority Working Group on Anti-Social Behaviour. He spoke about the proposals in Crime and Disorder Bill, announced in the Queen's Speech. These were proposals to improve the youth justice system and to combat disorder in local communities. 'Disorderly, anti-social behaviour causes alarm and distresses the public, heightens the fear of crime and if unchecked can lead to escalating criminal behaviour, he said.
The Bill will be the first major step in implementing our strategy of zero tolerance on crime and disorder ... What we will do is place a new joint responsibility on the police services and local authorities to develop statutory partnerships to prevent crime and enhance community safety by means of Community Safety Orders. We recognise how plagued many neighbourhoods are by continual anti-social behaviour by individuals or groups of residents.
He meant, and could have said, that these individuals and groups were the very same young people so well represented in the prisons.
This sounds as if it reflects a substantive and articulated agenda. It reflects what Jack Straw was saying long before the election. For example, in a speech in September 1995 Straw told his audience that... in an increasingly privatised and private world, street life remains a crucial shared and free experience, critical to the maintenance of functioning communities and society'. Furthermore, in a passage which was widely noted, often with some astonishment, he said: 'Aggressive begging along with graffiti and in some cities "squeegee merchants" all heighten people's fear of crime on the streets... the result is a vicious circle in which people use the streets less, society becomes atomised and community life breaks down.'

Have his views changed? In an interview with Steve Richards of the New Statesman on 23 May 1997, Straw remained consistent as to his essential philosophy. However, he did state that the Home Office is not 'just' a department of law and order, but also a department of human rights. For example, he had already shown a more humane approach to immigration, 'a concern for human rights and justice'. Thus, on 5 June 1997, Straw announced the end of the 'primary purpose rule', to 'make the immigration system for marriage partners of British citizens fairer and more effective'. He did not expect a fall in the overall prison population. 'I think we can stem the rise,' he said, 'but in the short term it will not be possible to get the figure down.' This means, as he frankly admitted, a continued reliance on prisons which are not only privately constructed but privately run. On 20 June 1997 he announced that the government would allow two more private prisons to be built, and ordered the Prison Service to look into the use of private cash to design, build and maintain prisons that would be run by the private sector. In principle, he said, incarceration should be a direct function of the state. 'However, we live in an imperfect world, and if the alternative to overcrowded prisons is to go ahead with this type of contract, we will go ahead with it.' He also wanted the return of the youth justice system which, he believes, obtained 16 years ago, when kids were 'caught and dealt with... Now they are not.' He has decided to form a Task Force on Youth Justice, drawn from the police, social services, the probation service, the courts, Crown Prosecution Service, the Audit Commission and others, to advise on changing the system.
He has also announced a rapid expansion of the trial of electronic tagging as a means of punishing people in the community. This means of enforcing home curfews would strengthen the community punishments which will be a major part of the Government's law and order policies.
However, his clearest statement of principle has been that liberalism in whatever sense plays no part in his vision. 'I don't adorn my approach to these matters with the adjective "liberal", but I certainly hope to adorn it with the adjective "effective". Some of my critics are trapped in a past that doesn't take account of today's realities.'
This should not, of course, be taken to mean an absence of philosophy. In New Labour terms, Straw is orthodox and consistent. Straw's 1995 remarks were matched by Blair's December 1995 radio interview, in which he responded to the stabbing of a London head-teacher by describing a 'new barbarism' on the streets, and arguing for the 'goal of vibrant, operative communities' where people would accept responsibilities and look after each other. The 1995 Policy Document Safer Communities, Safer Britain: Labour's Proposals for Tough Action on Crime announced that 'We are now the party of law and order. The breakdown of law and order is intimately bound up with the break-up of strong, cohesive local communities...' New Labour was committed to 'rebuilding communities and reclaiming the streets for ordinary people.' New Labour did not invent the rhetoric of community. Phil Scraton has traced the way in which a new language of ‘community policing' was deployed, in particular by the then Chief Constable of Devon and Cornwall, John Alderson.3 His objective was to establish 'democratic communal policing' which would respond to the 'common good' of communities and create 'domestic peace and neighbourly trust'. Lord Scarman's 1981 Report following the Brixton riots endorsed 'community policing', especially specialist training for Community Liaison Officers; the return to neighbourhood 'beat' systems; close contact with community agencies; self-help groups; and community consultation.

The cosy rhetoric of community seems inevitably to carry with it its harsher corollary. By the mid 1980s the rhetoric of community policing, Scraton points out, dominated British policing, and community consultation became a statutory obligation under the 1984 Police and Criminal Evidence Act. But, far from heralding a new dawn in police-community relations, it was welcomed as providing a new dynamic of social regulation: behind the rhetoric of prevention, the police could achieve greater regulation and discipline within communities identified and targeted as problems. The police have labelled, targeted and pathologised groups as 'criminal', 'violent', 'militant'; terms such as the 'dangerous classes', the 'underclass', the 'political subversives' and the 'sexual deviants' have become institutionalised.
It has been argued by McLaughlin and others that the central state has created a formidable discourse which employs terms such as 'community' and 'consumer' in a new way.4 Thus, the concepts of community, representation and participation have become repositioned, successfully heading off demands for democratic control of the police, and contributing to 'the institution of a totalising community-wide policing strategy, involving the local state.
Indeed, New Labour's rhetoric of community is inextricably coupled with the targeting of dangerous, even barbaric, individuals and groups. This is the inevitable consequence and counterpart of the communitarianism which they have espoused, which is based on a distinctive philosophical position.
The source of this philosophy is well known: the 1994 book The Spirit of Community: The Reinvention of American Society by Amitai Etzioni.5 Etzioni's communitarianism is militant and overtly programmatic. He focuses on three areas of concern. First, the shoring up of morality in civil institutions such as the family, school and voluntary associations; second, engagement with and reversing of the problem of 'too many rights, too few obligations'; and third, the assertion of the importance of the public interest as against special interests in political life. In the preface to his 1995 British edition of The Spirit of Community, Etzioni describes the politicians, like Blair and Straw, who have so enthusiastically taken to his ideas, as 'visionary people who have seen the power of a compelling set of ideas whose idea has come'. These ideas include, of course, the much-hyped 'parenting deficit'.

Etzioni puts forward his own ideas on law and order, and 'public safety', with the aim of enhancing obligation and 'shoring up our moral foundations'. He supports community policing and crime watch schemes. For first offenders only, he recommends a strategy of public humiliation to allow re-integration, since it would 'serve to underscore society's disapproval of the crime committed rather than of the people themselves... Temporarily marking out those convicted in open court, after due process, seems a legitimate community-building device'.
In a large article which appeared in The Guardian on 28 June 1997, Etzioni expands on these ideas, in the British context. He is rather opaque in his qualified support of community policing, which, he says, '...does not quite cut it. While it is helpful to move more police on to the beat, it is also necessary to change the demographic composition of local police forces so they will not differ too much from the communities they are supposed to co-operate with'. Addressing liberal concerns, he adds: 'Stigma is a useful device for addressing criminal behaviour, unfortunately it ruffles the feathers of liberals'. But 'negative sanctions are unavoidable. Stigma is the least costly and the most - yes, the most - humane'. He is careful to stress that his proposals are 'not intended to supplant the conservative's law and order measures or the liberals' job-creation'. Communitarianism is presented, in a curious echo of Giddens, as above or beyond mere right-left politics.
Etzioni's Communitarian Network has achieved considerable success in the US. Its sales-pitch is seductive, especially to a disoriented left, not least because of its careful distancing from the political right. This is how the Network presents itself:
The easy part is identifying what has gone wrong with America: the pendulum has swung too far toward a preoccupation with individualism. Too many people shirk their communal and civic responsibilities. Special interest groups have gotten out of hand. Moral agreement has crumbled. The difficult part is finding effective ways to restore social and moral consensus without a small group of people imposing a set of behaviours and values on all of us. We need ways to restore the family, without reviving a 1950s mentality; to stop criminals and drunk drivers, without opening the door - even a crack - to a police state; to curb the spread of AIDS, while protecting privacy. In other words, to restore social responsibilities and a commitment to community, without puritanism or authorit¬arianism. This centrist philosophy is at the core of the communitarian movement.

The Network has carried out its own opinion survey. Its findings, while surely not to be replicated in the UK, are illuminating, in that they throw some light on the reasons for the success both of Bill Clinton and Tony Blair in their recent elections. A random poll of 792 people, conducted by the Survey Research Center at the University of Maryland in October 1996, found that 54 per cent agreed with the communitarian position that individual rights should be balanced with social responsibilities. Only 15 percent believed that the main focus should be the vigilant protection of individual rights against government intrusion, while 26 per cent said that what was most needed was to live up to social responsibilities.
Asked what they considered to be the major source of America's social problems, 45 per cent indicated that the source was moral, while only 28 per cent saw it as political and 17 per cent as economic. That is precisely the sentiment to which Blair and Straw appeal.
The survey also addressed specific social institutions, such as the family. 58 per cent of those surveyed favoured the two-parent family where each shares responsibilities equally, while only 24 per cent preferred the social conservative concept of having the mother stay at home and the father work, and 17 per cent said they did not prefer any one family structure to another. On the issue of poverty, 48 per cent of those polled felt that the community should be the primary source of assistance to the poor, 22 per cent preferred a libertarian position of allowing the poor to work their way out of poverty, while another 22 per cent would leave the problem in the government's hands. There were similar findings with respect to education. 63 per cent supported the communitarian position that state schools should teach shared values. Only 10 per cent were against such education, while 22 per cent preferred instruction in religious values.
In a recent interview with John Lloyd in the New Statesman, Etzioni claimed he is probably right - that the new Clause IV of the Labour Party constitution reflects his influence, in its insistence that the goal of the party is to create 'a community where the rights we enjoy reflect the duties we owe'. However, he is cautious about reform, particularly constitutional reform, in the British context, which he believes to have achieved an approximate balance. He does consider that Britain, and the US, should entrench social and economic rights; 'The gap between rich and poor is too great. It is destructive of community. You can't get equality and you don't want it. But you should make things less unequal'. Then he adds: 'The best way to go for that is through dialogue'.
In other words, Etzioni's politics are entirely consistent not only with Giddens 'third phase', but also with the contention of many theorists of postmodernism that ethical and political problems are to be resolved discursively, through a re¬arrangement of language. An example is Etzioni's June 1997 International Herald Tribune article, in which he argues that introducing a multiracial category into the US census would 'help soften the racial lines that now divide America by making them more like transitory economic differences rather than harsh, immutable caste lines'. This short passage contains some surprising assumptions as to the causes of both racism and poverty.

Etzioni's approach has been widely criticised - see Hughes important article.6 Anna Coote, formerly of IPPR, now special adviser to the DSS, has argued that this brand of communitarianism does not tackle the uneven distribution of power around divisions of gender, class, 'race and generation: 'The argument that the roots of underachievement and deviance can be traced to past injuries and impacted layers of exploitation' can be lost in the quest for moral responsibility for 'failure'. Lasch believes that the logic of Etzioni's argument leads to 'the regimentation of opinion, the repression of dissent and the institutionalisation of intolerance, all in the name of morality'.
For Clarke, the use of the word 'community' could be a prescription for bigotry and parochialism, 'given its attempt to resolve the complexity and antagonisms of an increasingly diverse population through the ideological device of a "regressively imagined people" which excludes "aliens," "lone mothers" and the "underclass" from its naturalised ranks'.7
From a liberal, or Liberal Democrat, position, the issues are clear. Conrad Russell writes in New Left Review of an interview he conducted with Jack Straw in June 1996. He says he was not much worried about 'communitarianism' or 'social authoritarianism until he asked Straw about his curfew proposals. Straw assured him that these proposals could not possibly be authoritarian, since they would not be impositions from above, but would instead be empowerments of the local community. For Russell, the 'notion that nothing a community does to its members can be authoritarian is positively breathtaking.'
However, arguments for a 'progressive communitarianism' have been gaining ground on the left. For example, Michael Walzer has propounded a vision of ‘critical associatiomsm' in which citizenship would mediate the other attachments an individual has and cut across them, in an inclusive fashion: 'It would appear to be an elementary requirement of social democracy that there exist a society of lively, engaged, and effective men and women - where the honour of "action" belongs to the many and not the few' This approach is one of several which criticise liberal individualism, whether from a Marxist or more religious - Catholic - standpoint.
Indeed, it is a concern for ethical questions, and the rejection of the social atomism and egoism of liberal capitalism, which provides the core of attraction for Etzioni as well as for New Labour. This also induced the financier and philanthropist George Soros to launch his recent attack on the dangers of unregulated capitalism. It is highly likely that similar sentiments motivated large numbers of those who voted Labour on 1 May 1997.
So what about the critique of New Labour's law and order and crime control policies? One source of such critique is the critical legal studies movement, which, in Nicola Lacey's words, is 'specifically concerned to dig beneath the surface of legal doctrines and practices; to go beyond a project of explication and rationalisation and to interrogate the deeper political, historical and philosophical logics which underpin the power of law'.8 Referring to the new relationship between the ethical and the political captured within the discourse ethics of Benhabib and Habermas, as well as Maclntyre's analysis of a contemporary world 'which has progressively evacuated the questions of the moral, the good, the virtuous from political life', she recognises the sense of loss and nostalgia expressed in such arguments, but does not neglect the feminist legal scholarship which concludes that there is 'a need for practices which express values and attachments'. In an extension of such feminist positions, Beatrix Campbell has argued that the possibility of’ community' or a 'progressive communitarianism' rests in the hands of women: 'Solidarity and self-help are sustained by networks that are ... open, expansive, egalitarian and incipiently democratic. Their challenge is to the systems that bear upon their daily life. Crime and coercion are sustained by men. Solidarity and self-help are sustained by women. It is as stark as that'.9

Lacey's own conclusion is one with which I would agree: '...the idea that there are ethical arguments which bear on law and its reform, and indeed that law could be less unjust and unethical than it is, remains central to progressive legal scholarship'; to which she adds-that ' Marxists saw, the deep reconstruction of the legal has to be premised on the reconstruction of economic, political, social relations: on massive changes in the configuration of power at every level.'
New Labour seems to be committed to a studied indifference to relations of power and oppression in contemporary society. This is manifested, for example, in the location of the source of social crisis in parental irresponsibility, or in the malicious wrong-doing of barbaric individuals or groups. The logic of this position is the social censure and exclusion from society of those who will not take responsibility, or persist in deviant behaviour. It can only lead inexorably to further growth in the prison population, and to still further loss of public confidence in or support for law enforcement agencies and the courts. Few expect, or even consider it desirable, that New Labour should adopt a Marxist perspective. Nonetheless, moralism that is not firmly connected to an analysis of the deep structures and causes of exclusion and oppression is likely only to lead to an ever more authoritarian and regressive style of government.

1. R Blackburn, 'Reflections on Blair's Velvet Revolution', New Left Review, 1997.
2. A Giddens, 'Centre left at centre stage', New Statesman, May 1997.
3. P Scraton, 'Community Policing in Britain: Context and Critique', Statewatch, November 1995.
4. E McLaughlin, Community Policing and Accountability, Avebury 1994, cited in Hughes (note 6).
5. A Etzioni, The Spirit of Community, Fontana 1995.
6. G Hughes, 'Communitarianism and law and order', Critical Social Policy, 16, 1996.
7. A Coote, 'A Bit Too Much of a Prig and a Prude', Independent, 3.7.95; C Lasch, 'The Revolt of the Elites and the Betrayal of Democracy', Norton 1995; J Clarke, 'Public Nightmares and Communitarian Dreams: the Crisis of the Social in Social Welfare', paper, Berlin 1995; M Walzer, 'The Civil Society Argument'-, in C Mouffe (ed), Dimensions of Radical Democracy - all cited in Hughes (note 6).
8. N Lacey, 'Normative Reconstruction in Socio-Legal Theory', Social and Legal Studies, 1996.
9. B Campbell, Goliath: Britain's Dangerous Places, Methuen 1993.