The Ministry of Justice has run out of money. If it were a business, it would have to declare itself insolvent. If it were a local authority, its members would be be liable to disqualification. But don't worry: it's only a Government Department, and you, dear reader, will keep the MoJ going, come what may!
The MoJ's increasing financial desperation is the story of austerity across the public sector. Can spending possibly be cut further? Has austerity simply run out of road?
Let's go back to the 2015 Spending Review. By 2015, the last Justice Secretary but 4 - or is it 5? - Greying or Failing, some such name - had already made unprecedented deep cuts, getting rid of 1 in 4 prison officers, closing 20 prisons (though without reducing the prison population), cutting prison officer starting pay, and cutting the probation service into many pieces and flogging off half it, closing over 100 courts.
Then, in SR 2015, the then Justice Secretary - some bloke called Glove or Rover, possibly? - promised still further heroic cuts, in return for massive spending upfront (1). Given £700m to 'modernise' courts, MoJ would save £200m a year by 2019-20; given £1,3bn to build 9 new prisons, it would save £80m a year by closing old ones, plus an unspecified amount from escorting contracts, as more court cases were dealt with by video links to prisons, instead of actual physical presence.
That has now all unraveled pretty much completely.
First, it was found that the earlier cuts had gone too far - prisons were spiraling out of control and it was impossible to recruit and retain staff. So the cuts were partly reversed, though the larger part remains in place (2).
Then it was found that the new probation service contracts weren't sustainable, and it became necessary to pay the operating companies more that the contracts specified (3).
So the SR 2015 figures had to be revised upwards for the 2017-18 budget (4).
Then the 9 prison building programme fell apart. Not one brick has been laid. The programme is now so delayed that no prisons will be fully operational by 2020, perhaps two fully operational in 2022 (5). As a result, running costs can't be reduced. indeed for the next 5 years, running costs must increase, because of double running and transitional costs of closures (6). [Edit: looking back, I see that in my time, we managed to open eight new prisons in just four years. But that was using PFI, which we now realise, was entirely wicked, neo-liberal, useless - unless, that is, you really, really need prisons built quickly].
But the reality is that closures of any kind look increasingly problematic. On MoJ's own projections, there will be 1,700 more prisoners in 2021 than there were in 2017. And there is a 1 in 3 chance that that will actually be 2,600 more (7). Well, 2 new prisons should do it – if heavily overcrowded from day 1. But of course, MoJ won't have the money to run them, because you can no longer close the old ones. Meanwhile capital funding, unused because of the slippage, was diverted to meet MoJ's higher than budgeted running costs.
Then the court 'modernisation' programme turned out to cost more than expected, helping to cause an overspend in 2017-18 (8). And according to the NAO, the planned savings from the programme are now looking.....dubious. So, more expense, but possibly less savings (9).
Moreover, there is growing evidence that obliging more defendants to accept court appearance via video links instead of being physically present - a vital element in MoJ's planned savings both in court escort contracts and court management - may in various ways disadvantage the defendant and result in serious, institutionalised injustice (10).
Then, pay: SR 2015 budgeted 1% for pay inflation but MoJ smashed the 1% ceiling with a 1.7% settlement for prison officers last year - and does anyone seriously think the POA can be shoved back within a 1% ceiling this year, or next? But where will the money for more than 1% come from? Hardly 'efficiencies' - those have all gone to pot.
Meanwhile, there were other pressures: delays in implementing new fees, demand for legal aid up. It's all very difficult, Minister!
Thus the original budget for 2017-18 had to be increased during the year by half a billion pounds (8).
(I daresay many local authorities would like the opportunity be able to go back to Treasury in year with their bowl: “Please Sir, can I have some more?” But Government reserves that right to itself).
And MoJ is still unable to say just how much it will spending this year, 2018-19: it is still busy discussing things with Treasury. We'll let you know later what we need, MoJ's Permanent Secretary tells us – and Parliament. The Estimate says £6.9bn (11): my guess would be the final figure will be around £7.4bn.
The steady upward drift of MoJ spending plans since SR 2015 can be put thus:
2017-18 2018-2019 2019-20
SR 2015* 6.7 6.2 6.0
budget 2017* 7.0 6.6 6.4
Est 2017-18 7.8
2018-19 6.9 (prov)
Actual 7.4 (??my guess)
Note * These figures were published excluding depreciation: I've added £400m, about the average in the accounts for depreciation, to make them comparable with the other figures).
Thus, the MoJ is now plainly totally adrift from plans agreed in the last SR. What next?
Well, the real terms cut in MoJ spending since 2010-11 has been in the region of 20-25%. The cost of those cuts is that the reasonably decent prisons and probation services we had in 2010 have been devastated, violence in prisons has doubled, self-harm has doubled, maintenance contracts in prisons have collapsed, Inspectors report widespread, unacceptable failure of both prisons and probation services, 100 barristers chambers are boycotting legal aid work, 258 courts have closed. All informed people (outside of the MoJ, naturally) agree that the entire criminal justice system of this country has been very seriously damaged by years of cuts.
Surely austerity must now have run its course.
Except that the criminal justice system is very unlike the NHS, or schools, or social care in one crucial respect, when it comes to spending. Demand can in part be controlled – as it cannot, realistically, for hospitals or schools or social care.
Not only that, it should be controlled. Since the mid 1990s, the prison population has doubled: at just the point where crime has halved. (For an account of why we can be sure rising prison numbers did not cause crime to fall, see below, http://www.julianlevay.com/articles/doubling-prison-numbers-did-not-halve-crime ). We have been building prisons almost without a break for a quarter of a century, opening 31 new prisons, and building around 25,000 places within existing prisons. Building has cost some £3bn, enough to build 25,000 new homes. Running costs have risen by over a £1bn a year, enough to recruit 40,000 extra teachers or nurses. And all this spending has precious little good: over-crowding is not reduced, re- offending rates have barely budged. Yet community punishments are much cheaper than imprisonment and in many cases, achieve just as much.
Government can reduce use of imprisonment. It has been done before - by Tory Home Secretaries (12).
If then, why not now?
(1) Spending Review and Autumn Statement 2015, HMT Nov 2017 Cm 9162
(2) Financial Times, Nov 2, 2016. Hilariously, Tory Justice Ministers have to make sure they never admit they are doing this because they cut too deep in the first place, oh no. Less hilarious is the grotesque misrepresentation of this partial restoration of a cut as an increase or additional staff, though in fact numbers will remain about 15% lower than in 2010. That's still a cut or fewer staff. These people will share the same circle of Hell as estate agents. (Actually, they probably were estate agents.)
(3) See NAO investigation here: https://www.nao.org.uk/wp-content/uploads/2017/12/Investigation-into-changes-to-Community-Rehabilitation-Company-contracts.pdf
(4) Autumn budget 2017: https://www.gov.uk/government/publications/autumn-budget-2017-documents/autumn-budget-2017
(5) Latest information is that work will begin in November 2018. A large prison cant be built and made fully operational within 25 months.
(6) See my report for the Prison Reform Trust: http://www.prisonreformtrust.org.uk/Portals/0/Documents/Julian%20Le%20Vay%20paper%20FINAL.pdf. In fact, the new prisons wont open before 2021 and that is outwith the period of the SR 2015 settlement, so the issue of how these costs are to be funded has yet to be addressed.
(7) See tables at https://www.gov.uk/government/statistics/prison-population-projections-ns
(8) MoJ Memorandum on Supplementary Estimate 2017-18, 7.2.18
(9) See National Audit office investigation here: https://www.nao.org.uk/report/early-progress-in-transforming-courts-and-tribunals/
(10) An important issue exposed by Penelope Gibbs, whose article I republished with permission here:
(11) See MoJ's Memorandum on the 2018-19 Estimates here:
(12) In the wake of the catastrophic riots of 1990, and the Woolf report, Tory Home Secretaries Kenneth Baker and Kenneth Clarke reduced the prison population by 4,000, by encouraging use of community sentences, enabling the closure of 2 small prisons. Then Michael Howard discovered that 'prison works', and Jack Straw agreed, triggering the steepest rise in numbers in history, with consequences we are still grappling with.
I have been reading David Cannadine's new survey of 19th century Britain, the first I've read since A Level History half a century ago. 19th century Britain doesn't seem to have changed much, but of course I have: we see things differently now. These were the things that struck me this time round – and they are relevant to the perpetual struggle, especially in the epoch of Brexit, to define our future by reference to our past.
1. Britain's economic dominance came earlier than one thinks - and it was astounding
During the early 19th century Britain became the first, and for a while, the only industrial power on Earth, that is, with widespread use of steam-powered machinery. The drivers behind this were various. Technological innovation, of course: but also the agricultural revolution of the late 18th century, the rapid population growth that it sustained (the population rose 50% between 1750 and 1800 and then doubled again by 1850) , a world trading empire (by 1815, an astonishing 1 in 5 of the world population were within the British dominions), backed by global naval supremacy and the first global capital market in the City (overseas investment increased five fold from 1800 to 1850). Nor were goods and capital the only exports: in the 1850s over 2 million Britons (including many starved Irish) emigrated, mostly to North America and the Antipodes, founding an Anglophonia that persist today.
The bare figures of Britain's economic dominance by mid-century are astounding. Britain produced half the world's coal, half the world's iron, consumed half the world's cotton. Britain had more miles of railway than France and what would later become Germany together. Per capita GDP was two-thirds bigger than in what would later become Germany. Britain accounted for nearly two thirds of the worlds shipping. London was the biggest city on Earth.
As I suspect is often the case, we reached our apogee almost before we fully realised it.
2. But it didn't last long, and by 1890 we were on the defensive
The technological innovation of the early industrial revolution occurred first here. But other countries soon caught up in volume – the USA surpassed us in steel production in the 1890s, Germany by 1900. By 1914 we were producing half as much steel as Germany – and a quarter as much as the USA. By the 1890s voices were heard urging that protectionism replace our national religion of free trade – sure sign, then as now, of a country on the defensive. More seriously still, other countries seemed more adept at subsequent waves of technological innovation: the car and the air plane were developed in Germany and the USA respectively. Britain continued to do well in pure science: but other countries were pulling ahead in applied science. Thus began the long, sad story of our amateurism, under-investment in skills and failure to apply new technology, which persist to this today (1).
3. 'Imperialism' came late in the century and seemed a bit irrational, even then
It is striking attitudes to 'empire' changed during the century. In the first half, the focus was on trade, not land. Indeed, successive Foreign Secretaries struggled to prevent local enthusiasts from conquering bits of the world on their own account (not easy, before the global telegraph network). Thus Napier in Sindh, Raffles in Singapore, Ellenborough in China, Dalhousie in Burma. In London, such adventures were often seen as regrettable, merely adding to administrative and military expense. In 1829, the entire staff of the Foreign Office was 28 – including a Turkish interpreter (2). Britain was a great naval power, but kept its land army small.
But as the century progressed, enlargement of Imperial dominion became an end in itself, reinforced by the fear that other burgeoning imperial powers would grab the bits still vacant, or even threaten existing British possessions – Russia in India and Afghanistan, later the French and Germans in Africa. In 1876, Victoria may have become 'Empress of India' in part out of pique at the crowning of a German Emperor. By the end of the century, 'the Empire' was a source of pride, but also of great anxiety, for example the threat of defeat at the hands of Boer guerillas. In 1902 Britain was obliged to agree joint Anglo-Japanese naval supremacy in the East, to see off the German and French naval threats. The Empire had become an encumbrance we could not afford to defend. Thus, our imperial decline began very early, as was felt imminent as early as 1900 (3).
4. What we did in Ireland was an atrocity
By 1800 Scotland and Wales were docile junior partners in 'Great Britain'. Ireland was another matter (4). A profoundly Catholic people had never made sense as part of a profoundly Protestant nation - always alien, always suspect, always repressed, rising with French help against the British Crown in the Revolutionary Wars. The Dublin Parliament was suppressed in 1801. Granted, the penal laws, which stopped Catholics even practising their religion and excluded them from society in many ways, were gradually relaxed from the late 18th century onwards, but always slowly, and against staunch opposition in Britain. 'Coercion Acts', a generic title for Acts to suppress basic liberties and rights in Ireland, were passed again and again throughout the century. Britain held Ireland by force.
Arguably the most important event in the domestic history of the United Kingdom in the 19th century was the Great Famine. The immediate cause was potato blight: but absentee landlords, rapid population growth, a history of Catholic landlessness, brutal mass evictions and and protectionism were all contributory factors. There was charitable help from England, and the whole world. But Government aid was inadequate: the official in charge, Charles Trevelyan, limited aid because it offended his belief in laissez faire: and because "the judgement of God sent the calamity to teach the Irish a lesson, that calamity must not be too much mitigated . . . the real evil with which we have to contend is not the physical evil of the Famine but the moral evil of ...the people ". In fact, there was no 'famine', strictly speaking: there was always surplus food in Ireland: and English absentee landlords continued to export it in huge amounts throughout the 'Famine' (4). Not 'famine' but human-contrived starvation (5).
A million men, women and children starved to death or died of disease induced by starvation. A million, in the richest country on Earth. Another million were forced to emigrate. England's very own Holomodor. Is it any surprise that the century ended with Irish terrorism, forerunner of bitter civil war in the next century, the terrorism of our own times, and the still unresolved issue of a partitioned Ireland?
5. Enterprise made Britain wealthy; State intervention made it civilised
Britain in the early 19th century would strike us now as essentially Third World, especially in the newly industrialized cities which just grew up higgledy piggledy around the new factories. Stinking open sewers and middens in the street, no safe water supply, the streets dark at night, no police, rampant theft and robbery. In 1858, the Thames stank so of untreated sewage that Parliament had to be hung with heavy curtains soaked in lime chloride. Workers were housed in over-crowded, shambolic, disease-ridden slums, and kept going on massive qualities of gin. Drinking shops and brothels abounded. Many children had no education, and worked incredibly long hours in dangerous factories and mines that killed or maimed them. Cholera, typhus and dysentery was rife. Life expectancy in the 1840s was very short indeed: in Manchester, just 28 years, in Liverpool, 27, less for the poor. Cannadine concludes that in industrialised towns, the 1840s were the worst for life expectancy since the Black Death!
By the end of the century Britain was recognisable as a civilised country. Much of that change was down to State intervention and regulation and public services. Factories Acts limited the hours children could work , made factories safer, and established an Inspectorate to check compliance. Education Acts ensured children got some education, at public expense, in publicly run schools. The Sale of Food and Drugs Act made food safer. Licensing Acts limited opening hours, protected the young, repressed public drunkenness (and prevented the adulteration of beer). The Artisan Dwellings Act enabled local authorities to clear slums and build safe public housing. The Municipal Corporations Act replaced corrupt and ramshackled local corporations of the 18th century and created the structure of proud, well funded local government that did so much for Victorian Britain: built proud Town Halls, libraries, schools and public housing, and supplied safe water, sewage. education, street lighting and police.
Studying the past often tells us more about ourselves, now, than about them, then.
I am struck now by how unthinking, unquestioning I was at 17. Despite the best education, I did not worry much about what 'Empire' actually meant. I was happy in the warm bath of British Providentialism – well not warm, by then tepid, but still not cold enough to force me to get out of – the idea that History with a capital H has a special destiny marked out for Britain and 'meant' Britain to rule large chunks of the world. I just thought of Imperialism as something we did, and thank God were better at than everyone else, and that by and large we did good. I was clever but stupid.
Now, of course, I see that attacking other peoples and occupying their country is wrong, and cannot be excused by doing some good along the way. Yet I am not one who thinks that by measuring the past against today's values, we can simply dismiss as 'wrong' the bits that do not measure up. For no epoch fully measures up to those values – including the present itself, needless to say. And what sense does it make to condemn, say, the civilisation of 5th century Greece because it was founded on slavery? Should Rome have stayed within its city boundaries and forsworn all conquests? What possible sense can history make if read in that way? And I admit to being further perplexed by the fact that my grandfather was a British official in imperial India, where he built the railways that made 'India' and ran them safely and sternly combatted endemic corruption. He was no Nazi, for me to be ashamed of. In short, I am less sure than ever what to make of our imperial past. That probably counts as progress.
I am also struck afresh by the delusion of modern British nostalgia. Our relative decline industrially and economically dates back a century and half. By 1940, we could not afford to fight the War, could not make half the equipment we needed, could not make at all some of the technology we invented, and so we relied utterly on American money, industry and technology. To see Boris Johnson wax lyrical about British know-how and Victorian entrepreneurialism and what a great trading nation we are and the spirit of 1940, 'we stand alone' etc is to stare unbelievingly at an idiot about to step off a cliff while loudly boasting how well he can fly. It is the sort of hubris that must be punished. Perhaps, in a sense, the British now 'need' the self knowledge of defeat that the French and Germans got in spades in WW2. But that would we be capable of using that knowledge? I suspect we will just hate foreigners even more.
The main lesson from this book is surely the one that I believe all history teaches us: the futility and wrong headedness of looking back to some imagined Golden Age as the model for what we should do now, today. There was no settled, unchanging Golden Age. The past, when it was being lived, was never secure, there was always uncertainty, anxiety: invasion scares in the 1800s, rural unrest and violence in the 1820, the threat of violent urban revolution in the 1840s, fear that extending the franchise would destabilise Britain, and later, violent resistance and terrorism in Ireland (and by the Irish in England), mass immigration from Eastern Europe, the Empire under threat from foreign powers, the threat to British naval supremacy from Germany, industrial unrest and radicalism at home.
The challenges of the present are different, to which the past cannot hold pre-prepared answers, and which can only be tackled by working out our own salvation afresh now, as best we can, based on what we value, how we think we should live, in short, what we would like our future history to be.
1. Wonderfully analysed in Corelli Barnett's coruscating 'Pride and fall' sequence
2. Today, 14, 000
3. Kipling's 'Recessional', published in 1897, captures that mood:
Far-called, our navies melt away;
On dune and headland sinks the fire:
Lo, all our pomp of yesterday
Is one with Nineveh and Tyre!
4. The language of statehood makes this clear. Ireland was not part of 'Great Britain' but of 'the United Kingdom', as is still the case with Northern Ireland.
5. It has been asserted that in the worst year of the Famine, Ireland exported about 4 million litres of butter to England: http://www.jrbooksonline.com/PDF_Books/irish.pdf
6. Shaw, 'Man and superman':
Malone: Me father died of starvation in Ireland in the black 47. Maybe you've heard of it.
Violet: The Famine?
Malone: No, the starvation. When a country is full of food, and exporting it, there can be no famine.
Last week's BBC 'File on 4' programme posed the question: 'Britain's squalid prisons: who's to blame?' [That should of course have read 'England and Wales'. It would indeed have been illuminating to include Scotland, where these services have not been outsourced.] The answer illustrated a perennial truth of outsourcing: that behind failure (or success) by outsourcers often lies failure (or success) by the customer.
Contracting for FM services is hardly rocket science. The UK has the most developed FM services market in the world. Many organisations, public and private, outsource FM – including the BBC and the Guardian – and it's not hard to see why. If your business , say, journalism, you have no expertise in running FM directly - and no wish to. A specialist firm is likely to be both cheaper and better than building your own in house service. Margins in the sector are extremely tight so you aren't paying a lot extra to buy it in.
Agreed, there are special circumstances in the peculiar world of prisons: as the programme pointed out, some problems need fixing right away, others (broken windows, showers) have different consequences in prisons than in the outside world. But such things can be written into contracts.
Both the Amey and Carillion contracts were disastrous since the start. 'File on 4' had meticulously trawled through reports by Independent Monitoring Boards (local people who provide an external presence in each prison) and found complaint after complaint. Among the worst cases was Liverpool prison. I read this passage in the Chief Inspector's report with incredulity, shame and anger:
I found a prisoner who had complex mental health needs being held in a cell that had no furniture other than a bed. The windows of both the cell and the toilet recess were broken, the light fitting in his toilet was broken with wires exposed, the lavatory was filthy and appeared to be blocked, his sink was leaking and the cell was dark and damp. Extraordinarily, this man had apparently been held in this condition for some weeks (1)
The Justice Committee rightly gave Michael Spurr a hard time on this report at their hearing on 24 January. It looked a career-shortening session.
Why did it all go so wrong? It's pretty clear:
the costs of maintenance and services were not clearly understood by the business and consequently planning assumptions have not held true. The contract is therefore underfunded and the declared efficiency savings reduced. Financial risk within the contract can be attributed to four main areas: asset verification, asset condition, service verification and variable costs. Actions have been taken within each area that are ongoing but to date have ensured clarity on financial risk and have allowed negotiated settlements to be reached that reflect true contractual costs. Appropriate governance has been put in place that now ensures that variable costs are accurately reported and justified and that claims are assured by the Contract Management team.
MoJ concluded that the mistakes it made in contracting
may impact on service provision and declared efficiency savings (2)
So, to be clear: MoJ knew, before Carillion collapsed, that its mistakes in contracting were likely causes of unacceptably poor service. That must, I think, raise the possibility that the contractors have some legal redress against MoJ in respect of incorrect information given in the contracting process.
I note also that both companies were subject to huge financial penalties for poor performance: in Carllion's case, £4m in 18 months. Interestingly, the fines against Carillion, levied month after month, stopped suddenly in June 2017. Was this the point at which MoJ realised its own miscalculations were the root cause of the contractors problems? Did MoJ then increase increase its payments to contractors, to make good the errors in contracting? Have the companies not some legal remedy, since the fines might arguably have been in some measure caused by MoJ's incompetence in contracting on an unsound basis?
There is a lot of murkiness about the figures. Remember, MoJ said the contracts would cost £80m a year, so against about £105m for the in house operation. But a recent PQ discloses that that is the price only for fixed costs and excluded indexation and 'variable works' (3). So we don't know what the all-up cost was expected to be - or actually is. Did MoJ simply forget about variable costs? MoJ now say the £115m cost reductions will be achieved. But will any cost reduction be achieved? If not, why not? Or are MoJ asserting that their previous in house team can beat the prices of any commercial FM operator?
Would slightly higher bids have worked? Well, as it happens, we have an example. Before these contracts were let, MoJ had let FM contracts for 2 London prisons to another company, MITIE. Those prices were between the rock bottom prices bid by Amey and Carillion, which have proved unsustainable, and MoJs own internal costs. And that contract is still operating reasonably well.
The programme highlighted the way the bureaucracy of the contract created problems. Previously, if the guys turned up to do some work in a cell and a nearby cell needed fixing too, they fixed that as well. Now, they must go away while the customer raises another order form, sends it to the contratcor's management and that then goes down to the guys again but by that time they are somewhere else.
What happens now? Since we now know, and MoJ has admitted, that the contract was underfunded, one must expect the cost of the service to increase. It will be interesting to see by how much. Would such an increase brings the price close to the bid by MITIE, which we now know was deliverable, but rejected in favour of too cheap bids?
'File of 4' raised one other matter, which is an impact on staff, not prisoners. Two long serving works staff at Liverpool prison, transferred to Amey when the contract started, spotted that Amey's 'efficiency' of requiring staff members to do work in a cell alone, rather than in twos, created a potential security risk through theft of tools while staff were up ladders etc – and that for 'tools', read 'weapons'. They went to see the Governor, who had previously been their Governor, to raise the issue. Amey then sacked them for 'bringing the company into disrepute'. You couldn't really make it up, could you? But the men surely have a cast iron defence. I mean, how could anyone bring Amey more into disrepute than it already is?
There is much about this scandal that is still concealed from the public, and from Parliament:
What is so disturbing about this scandal is that these should have been about the most straightforward contracts you could think of. Hundreds of FM contracts are let every year. Yet MoJ found them too difficult. Same with the tagging contracts, which MoJ had been letting for 20 years without trouble, but which fell apart a few years ago in a series of botched procurements that have cost the tax payer millions (4). Same with the contracts for rehabilitation of short term prisoners, which in the opinion of the auditors, were so bad they might as well never have been let – and which did not require the contractor to achieve anything in the real world, but merely to produce bits of paper (5). Not to mention the (much more ambitious) botched probation contracts which have almost destroyed a service which MoJ itself reported was functioning well in 2010, and so placed the public at additional risk (6). Or the audit of MoJ procurement published as far back as which revealed a Department with massive, systemic weaknesses in every aspect of procurement (7).
MoJ have been 'learning lessons' of successive procurement disasters and promising to improve performance for too many years now. And not just procurement – prisons, probation, courts, sentencing policy, wherever you look, MoJ is failing. It is in fact a failed Department, like a failed school, or failed hospital, or even a failed prison. Thing is, when a school or hospital fails, Whitehall removes the top management and takes it over. But when Whitehall fails, as MoJ so clearly has, who takes that over?
In a move which has delighted penal reformers, faced with a prison system in crisis – inhumane overcrowding, rising violence and self harm, union unrest – the Government has at long last decided to implement an ambitious and radical strategy for prison reform to address the fundamental problems of the prison system, defying criticisms from the Right-wing press that it is 'soft on crime'.
The programme comprises:
These reforms were announced by the new Minister of Justice in recent weeks.
This article is about France. Come on, whatever did you think?
"The government knew of a plan that could have retrieved more than £360m from Carillion.....but the Cabinet Office, responsible for oversight of government contractors, did not apply any pressure on Carillion’s directors to adopt the proposals" (Guardian, today).
Don't you just love that word: 'oversight'?
A rare balanced and informed article in the FT today on private prisons:
It ends with a comment which for me, sums up exactly where we are, as incompetence on the part of operators and customers alike, plus of course Corbynism, seems to spell the end for outsourcing:
"we’ll spend the next 20 years relearning the downside of self-serving union-dominated public service monopolies.”
That isn't the whole story of course, for there are sectors, like the armed forces, where not even the fanatics of the Right think competition can be applied (although having said that, I fear Rees Mogg may at this very moment be planning a return to medieval mercenary armies). And one of the many delightful internal contradictions on this issue is that the further Right you are, the more wonderful you think those public service monopolies are.
And the fundamental issue is surely not public v private, but this - in cash strapped times (and everyone except John McDonnell knows money is scarce and will remain so indefinitely), how do you run public services of consistent quality, how do you adjust the service to realistic levels given tight funding, how do you manage public expectations, what do you prioritise and what do you not prioritise, how do you give proper accountability and transparency? That it seems to me is the debate we are so determinedly not having, while the Tories deny that funding cuts have caused unacceptable service, and Labour maintain there is money enough to meet every demand.
Note: I am re-posting here with permission this article by Penelope Gibbs, Director of Transform Justice, because I have not seen this point made about evidence of the potential injustice of video hearings, especially (but not only) when imposed compulsorily; and the point is all the more important at a time when MoJ is aiming a huge expansion in hearings by video links to save money on court productions. So it seems important that the point is properly considered, and by her account it is being ignored . The original is at:
"The absence of the applicant in the court automatically depersonalises him/her. His/her feelings and emotions are contained within the detention centre, hence not being felt on a more personal level at the court. Consequently, the applicant becomes a mere ‘detainee’ in the video. This disadvantage is compounded in cases where applicants required interpreters. In some instances, due to reasons such as the incompetency of the interpreter or limited time given to interpret court discussions, the hearing of the case seemed to only be happening among the parties present in the court” (Cardiff University Law School Bail Observation Project 2015-16).
The justice system is fractured, but access to justice and effective participation are important in all jurisdictions. So its good and bad that video hearings seem to be having just as negative effects in immigration bail hearings as in criminal hearings – good because it strengthens the evidence base, but bad because it indicates systemic problems.
Those detained in immigration detention centres like Campsfield and Yarlswood usually apply for bail so they can lead a (semi) normal life while waiting for their next court hearing. Nowadays nearly all those applying for bail do not get transported to the tribunal in secure vans, but appear via video link into the court room. Everyone else involved – judges, lawyers, interpreter, public observers etc are in the court room.
The detainees get no choice as to whether they appear on video or not, and there is no provision for those with physical or mental health problems to be assessed so that reasonable adjustments can be made. And the problems involved are similar to those experienced by defendants and prisoners.
“In video link hearings, the legal representative gets only 10 minutes to talk to the applicant at 10 a.m. or at 2 p.m. before the listed hearings start. By contrast, the representative of an ‘in-person ’applicant can talk to them at any time in the cells for as long as they need. This is not equal treatment. Video link may be effective when the judge enables the applicant to participate actively in the process, when interpreting is not needed and when the machinery functions efficiently. But it is not usual for the judge to act in this way, and on far too many occasions the technology was defective, with poor lighting, noisy feedback, sound distortion and mechanical breakdown. Our major criticism of the video link process, however, concerns the impact on applicants. They are at a distance from the court, and all those in it. Unless they are directly engaged by the judge they may have no opportunity to speak, and unless the judge ensures that there is full interpreting for those who need it, they may miss much of the substance of the hearing. It could be argued that video link does not constitute a hearing in the judicial sense, unless it can be demonstrated that there is no detrimental effect for the applicant” (Still a Travesty: Justice in Bail Immigration Hearings 2013)
These problems mirror those Transform Justice found in its research on video hearings from prison to court and from police station to court.
This would matter less if outcomes of hearings were the same whether or not people appear on video. But there is evidence that outcomes are very different. A study done by the Ministry of Justice in 2010 showed that defendants who appeared on video from the police station were more likely to be imprisoned than those who appeared in the physical courtroom (this was either the direct effect of appearing on video or the indirect effect of more defendants on video being unrepresented). And research done on immigration video hearings in England and Wales backs this up. A fantastic group of volunteers observed bail immigration hearings in 2012 and found that the success rate of bail applications was 21 of 41 when the detainee appeared in person (51%), and 54 of 170 (32%) when by video link. As with video links for criminal hearings, there is no official data for video immigration bail hearings so we do not have access to bigger numbers.
But there is corroboration from across the pond. Professor Ingrid Eagly studied the effect of putting immigration detainees on video in USA for court hearings and found that those who appeared on video were more likely to be deported than those who appeared in person. This wasn’t however because the judges appeared biased against them, but because the detainees on video were more likely to disengage from the process – “less likely to retain counsel, to apply to remain lawfully in the United States, or to seek an immigration benefit known as voluntary departure”.
Its clear from all the research that has been done that video hearings can have a negative effect on outcomes. The pity is that no government research from England and Wales is recent, the best bit of government research is seemingly ignored, and other research is on small numbers.
However anecdotal evidence is important and even the current Lord Chief Justice has experienced how the behaviour of defendants changes when faced by cameras. At his annual press conference Lord Burnett was asked about the filming of sentencing hearings and said he was “afraid some people behave differently - not judges - but some people behave differently in court if they know that something is being recorded”.
If the Lord Chief Justice is convinced the behaviour of someone in court changes simply because there is a video camera there, he undoubtedly also countenances that appearing on video whilst completely isolated from the courtroom may significantly affect the behaviour of defendants/detainees?
Meanwhile HMCTS, which has three senior judges on its board, is piloting a fully virtual immigration court which will have no one in the court room at all.
In outsourcing it takes two to tango - customer and supplier. Both share in success, and in failure.
Thus questions are now being asked about the role of Government in the massive failure of Carillion: in allowing the company to bid so low that its margins were unsustainable, and in continuing to award contracts last year long after it was clear that the company was in deep trouble and might fold.
As the FT argues today, outsourcing in such circumstances risks becoming a Ponzi scheme, where contracts are inherently worth little, but a steady stream of new contracts is needed to maintain the illusion.
To be sure, incompetence was another factor, with cast cost overruns on major projects driving up debt.
All of this a very far cry from the Left orthodoxy that private companies are coining vast profits from outsourcing. That was so sometimes so in the 2000s, but certainly not today. Indeed, the impact of austerity on the private sector outsourcers needs to be better understood. By both parties.
Interesting NAO report on commercial relationships across Government, accounting for a third of all public spending (1). If you read that the big spenders are MoD (Type 45s), Transport (Network rail and franchises), MoJ (probation, tagging) , DBEIS (nuclear energy), you will be unsurprised at the conclusion that there are profound long standing weaknesses in Government procurement, but - and this has been said ever since I were a lad - 'government is now starting to address the issues'. 'Addressing' the easy part, 'delivery' another.
But it isn't as simple as just bringing work back in house. All those Departments have serious problems with direct management as well. 'Management' indeed is just the problem. Plus bringing work back will carry huge bills, eg for migrating all staff onto public sector pensions.
The conclusion I come to: Government should stop trying anything clever or innovative in contracting , because it'll almost certainly cock it up. Make sure you can walk before you try running - never mind hop, skip and jump.
Berwyn Prison near Wrexham, which began operations in February this year, will be the biggest prison in the UK by some margin, with very tight staffing. It is in several ways something of an experiment.
The privately operated Oakwood and Northumberland prisons – also Cat C male, so these are all the same type – have been criticised by opponents of the private sector both for being too large, and having high staff/prisoner ratios, thus causing unsafe conditions.
But Berwyn will be much bigger - but not quite so tightly staffed (1):
capacity operational staff per prisoner (2)
Oakwood 1605 1:5.9
Northumberland 1318 1:6.8
Berwyn 2106 1:5.5
It will be interesting to see what happens, as Berwyn builds up numbers – it is currently only at about a third of capacity .
If it manages to maintain a stable, safe regime, that may put in question the assumption that staffing cuts are the main cause of the worst prison crisis in a generation. Might it also suggest that MoJ has found the 'sweet spot' where staffing is lean, but still safe? No: since prisons with similar or lower ratios are in deep trouble. Even so, MoJ's 9 'new for old' prison programme assume still further staffing cuts, to generate net savings in operating costs. But might it not also suggest that MoJ as customer has driven staffing ratios too high in private sector prison contracts - such as, indeed, Oakwood and Northumberland? (3)
If, on the other hand, Berwyn turns out to be chaotic and unsafe, it will validate the hypotheses about low staffing - and call in question the judgement of those who planned it. And - here's the difference relative to the privately run prisons, which are held to contact - staff numbers may have to increease.
There are differing views about mega-prisons. I haven't any expertise in the matter. They offer economies of scale, so are cheaper per place. Opponents say they will be factory-like and impede the relationships essential to good prisons. Advocates say that 3 or 4 units for different types of prisoner within a mega jail, each with their own identity, management and staff, would in fact be a series of smaller prisons, not one big one, and would have benefits for prisoners eg better specialist healthcare on site. Maybe: but I suspect that despite that, it will still feel like a mega jail, and something will be lost. Their sheeer size means that prisoners cannot be held as close to home as would the case if we built a network of small community prisons instead, though that would cost more.
Berwyn marks a major change in accommodation policy. Hitherto, we had always aimed at one man to a cell: that was how overcrowding was measured - how many were held two or even three to a cell. In Berwyn, many(I think the majoirty) will be housed two to a cell, albeit one designed for double occupancy, whether they like it or not. No credible reason is advanced for this, other than packing more in, and driving down construction and operating cost per place. I am surprised how little comment there has been on this historic change. It should be independently evaluated.
I haven't mentioned cost. The headline figures are:
annual cost per place, £
Berwyn (est., when when full) (1) 14, 000
Oakwood (4) 14, 348
Northumberland (4) 14, 548
So why are privately run prisons more costly, even though they have leaner staffing? Because they aren't. To compare like with like, you'd need to make several additions to the Berwyn figure:
Past experience of trying to ensure a level playing field in competition suggests an addition of around 2% for item 1 (6).
MoJ accounts show the on cost for item 2 is 25% for the private sector but 60% for the public sector, thus we should allow 15% differential on cost to the public sector (7).
3 is unknowable - but pension experts think that even under the reformed PSC scheme, the combined employer and employee contributions are likely to be 5% short of actual costs even on current assumptions, and it could be much more. But we'll never know – that's the beauty of the thing. Uncosted and uncostable (8). As so often nowadays - pensions, nuclear power, climate change, the NHS, social care, the ageing housing stock - when long term costs look too big to ever be affordable, we just ignore them.
That suggests the true comparison requires an additional 22 % for the public sector, thus:
annual cost per place, £
Berwyn (when full) 17, 500
Oakwood 14, 348
Northumberland 14, 548
About 5-7% of the higher cost in the public sector is having more operational staff; the rest is a a mix of higher (though hidden) pension costs, more non operational staff, higher pay, longer holidays, more sick absence, shorter working weeks, less flexibility, or more costly supplies and service contracts including central services (6). Of course, if we were looking at operational cost, rather than cost to the public purse, the gap between sectors will be even larger, because of the profit margin.
The significance of these figures is considerable. It means that in stating to Parliament that public and private prisons are equally efficient, Government has told an untruth (9); indeed that Government doesn't actually know what the true comparison is (10); and that in terminating competition on the bogus basis that there is no longer significant cost difference between sectors, MoJ has shown precisely the kind of 'producer self interest' which might be expected, given that the public sector has, until recently, both awarded contracts for prisons and has also been the biggest competitor in those competitions. (11)
It also implies that on a true cost comparison, the private operators could provide a better service than the public sector for the same money – but is not allowed to, because its costs are being mis-represented, relative to the public sectors.
No wonder the companies I worked for were so wary about competing against public sector prisons! (12). The match is rigged.
I was formerly Finance Director of the Prison Service and then Director of the National Offender Management Service responsible for competition. I also worked in the NHS and an IT company. I later worked for two outsourcing companies.
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