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.