The privatisation of criminal justice practices is an affront to human dignity. When we are acted upon for profit as well as for justified ends, the proper link between coercion, rights, and authority is lost.
Ministry of Justice proposals could mean that all collection of court fines — powers normally exercised by Civilian Enforcement Officers, employees of HM Courts and Tribunals Service — will be granted to private contractors. There is extensive evidence of how private contractors (principally G4S, Serco, and Sodexo in the UK) are both systematically failing in the provision of public services and are too big to fail. Despite high-profile cases of failure in standards, of deaths in custody, misuse of restraint techniques, provision of abhorrent accommodation conditions, and the Olympic security debacle, their contracts are renewed and criticism dismissed. There are, then, reasons to be sceptical of these privatisation proposals.
What are the precise grounds of scepticism? Consider G4S’s COMPASS contract to run accommodation for asylum seekers and to run immigration removal centres: this resulted in the painting the doors of asylum seekers’ houses red, and it involved threats to deport asylum seekers for minor infractions of accommodation rules. In these stories we can see two different grounds of critique of these companies as private actors discharging public roles, grounds unrelated to the technocratic competence of G4S relative to that of state actors.
On the one hand, private actors like G4S seem especially prone to foster or elicit certain forms of degradation. These fall within a phenomenology of indignity. The painting of asylum seekers’ doors — the exposure of the vulnerable — is just one example of where indignity is especially likely to be produced by private actors whose hybrid public-private status makes them unable to protect the division of public and private that we, as individuals, are entitled to and which prevents certain kinds of indignity.
On the other hand, the underlying nature of privatisation of criminal justice produces problems for human dignity as a structuring principle for public power. Where moral and legal responsibilities are blurred through failure to respect the presumption of innocence in running and managing asylum accommodation, then human dignity is diminished. My concern here is to distinguish these two discourses of (human) dignity.
The Phenomenology of Indignity
Unlike Kantian uses of ‘dignity’, the phenomenology of (in)dignity neither presumes any particular conception of the person nor ties value to rational agency. We are concerned with both human vulnerability and with the gradations in the forms and scope of human agency including the various ways in which our agency can be manipulated (through nudging to coercive interrogation and beyond). We can express in the language of (in)dignity both failures to fulfil minimum demands of bodily need or integrity and the importance of agency and its vulnerability. Indeed the language of dignity is important precisely because it captures both harms related to our bodily vulnerability and wrongs related to our basic status as humans.
It should also be noted that there is also a link between dignity and hope, namely that the coercive powers of the state should not be used to render individuals hopeless through the death penalty or through life imprisonment without parole. The human condition is not just one of agency and vulnerability but also one with a contingent and dynamic horizon. To negate the latter is to strike at our humanity as much as the imposition of degrading physical conditions.
The particular links between the phenomenology of indignity and private security arises from the motive and status of these actors, not from the general arrangements granting them power. Regarding motive, rather than being a superior third party created to hold us accountable and in turn accountable to a polity as a whole, a private contractor — the representative of a company — engages in coercion in order to profit. Thus the additional harms that accompany being legally coerced or legally detained — the disruption, the harms to family life, the conditionality of one’s choices and aspirations — become indignities when they are facilitated by those with no simple interest in the discharge of justice but with mixed motives.
Second, there is a special indignity in coercive activities undertaken by those who are our equals in status but who lack our vulnerabilities. The status of these actors, sitting between the public and private, entail a blindness to our own need for a division between public and private, a division that is particularly fragile for those touched by the criminal justice system. The status of these actors is an explicit technocratic compromise: to make our equals our superiors for greater efficiency in coercion. But where our neighbours or fellow citizens are the agents of justice and help to determine our fate, there is no contingency in, or escape, from the criminal justice complex. Without a division of private and public actors there is no outside of the system, no hope of existing purely as citizen.
The Normative Structuring Necessary for Human Dignity
These latter concerns begin to sound in the importance of human dignity. Human dignity is the basic status of any individual regardless of their other assumed statuses or roles. The normative implications of human dignity have sometimes been confused with the phenomenology of indignity. Rather than articulate the experience of the distinctively human, the most important function for a discourse of human dignity is to stress that our systems must be tailored to our basic status, not the other way around. It is not a moral principle granting special value. It is an interstitial principle, granting humans status within and across our normative orders of law, morality, and politics.1
This entails positive responsibilities on the part of the state to ensure normative holism: i.e. to ensure that the status and entitlements of the individual are not compromised by the divisions between public and private, or moral and legal. Accordingly, human dignity is the right discourse with which to critique the invisibility of labour or abuse in the private sphere but also to critique the over-expansion of public scrutiny of private behaviour. It is not an empty idea of agency that is being defended but the proper balance of our normative orders. Equally, the intrusion of the moral into the legal — for example, the use of character evidence in court, or of ASBOs — is properly analysed via human dignity as the intrusion of the moral and political into the legal. Human dignity is therefore rightly used in our defence of the rule of law; it is relevant when our normative orders are in dispute, where appeal to the legal, or the moral, or the political alone will not clarify our underlying obligations. This has three implications for private security.
First, private security contracts create a ‘permissive space’ or normative vacuum where the legal runs out but the moral or political cannot (as they would in a public actor) fill the space. The limits of the contract are the limits of responsibility. High maternal and infant mortality among asylum seekers is a ground for reform amongst our asylum and housing processes. They are an irrelevance to private actors. The vulnerability that comes from publicly identifying the accommodation of asylum seekers inhabits an extra-contractual space that has no normative force for private actors.
Second, private actors fail to respect the presumption of innocence as a distinctive division between the moral and the legal. This principle confines and restrains the mechanisms of criminal justice such that they are used by agents of the state and with due caution so that, in particular, they are used against specified offences and are not able to become grounds to censure moral failures. The fact that the administrative powers permitted to private security companies —on a discretionary basis — can bleed into direct implications for liberty is to allow our normative orders to be illegitimately combined.
Third, the division of our normative orders produces distinctive possibilities to be wronged. The status of an agent (or its absence) makes certain actions wrongful. ‘Degradation’ (under ECHR Article 3) requires a link with state power: the wrong is the distinctive wrong of those in high status or a superior position misusing power. In contrast, a different degradation occurs when coercive activity is used against us without its agent having the authority of the state. Under normal circumstances this would be a ‘crime’. In the context of privatisation it is degradation. It is degrading because political power is being exercised against us without underlying moral authority. Political and moral authority exist in concert in a legitimately exercised display of coercive power by the state. We are degraded where our coercion, by private actors, represents an act with political authorisation but without that moral authority. We grant private actors temporary coercive legal powers in extremis. To grant them such power routinely is to make the exception the rule.
We should sound alarm at the indignities produced by private contractors. But the privatisation of criminal justice practices is additionally an affront to human dignity in the sense of severing a link between force and public authority. When we are acted upon for profit as well as for justified ends, the proper link between coercion, rights, and authority is lost.
Stephen Riley is Lecturer in Law at Leicester Law School