I fear there is no magic money tree for justice, so the only solution is to shrink the system: by Penelope Gibbs (reposted from LinkedIn)
A really excellent article by Penelope Gibbs on the breakdown of the courts system. So many people blog about prisons and probation, almost none about the equally serious disaster unfolding in our criminal courts. The analysis is stronger for being rooted so much in peoples' direct experience, and the prescription is unusual in offering genuinely new, genuinely practical solutions, not just shed loads of more money.
“Mags Ct today in chaos. 2 duty solicitors unable to cope because almost none of the 40+ defendants had own solicitors and all needed legal advice. There are consequences to reducing #legalaid scope and fees. Many cases adjourned to another day” @Halo_Lawyer
“Defendant appears at Mags Ct, but there’s no interpreter for him. Clerk says she won’t deal with him and will send him back to the Police Station. I query the lawfulness of this and am told this is what the regional court managers have said is to be done and it’s happened at other courts with no complaints. I point out that if they want to take that approach then I’ll expect to be quoted chapter + verse of legal basis for this – reply to that was, I’m the clerk, I don’t have to justify a decision” @neilsnds
“Two London Criminal defence firms I used to work for are about two months from going under due to the large number of people being released under investigation and due to the LAA making it a war of attrition to get PPE [pages of prosecution evidence] paid on any large Crown Court cases” @escobills
“The prison declined to bring the defendant to court because … they have spelled his name wrong on their paperwork. As we are asking for him by his actual name, it does not tally with their records. The fact that the Prison Number is the same is, it would seem, irrelevant” @ClonchFlud
“Trial adjournment application this morning in the mags. Schedule of unused [evidence] only served 2 days ago. Need to serve a defence statement. Court clerk had to be ‘guided’ to the view that this is an entitlement. Concerning” @Peter_L_Jones
“Another call today from Court to confirm tomorrow’s trial is off due to a lack of judicial/courtroom availability.3rd hearing in 2 months that I’ve had vacated the day before.Trying to explain that this is normal to clients & witnesses is never easy and it’ll only get worse” @SuffolkSolicita
“The ceiling in Court 7 at York House, Feltham, immigration tribunal fell down yesterday. All cases for that day adjourned. Cases for today supposed to be in Court 7 “floated” and then “floated out” [cancelled] at 3pm” @englishchick
“Currently prosecuting a trial with judge whose only concern is finishing so he can go on holiday next week. Outcome of every application contingent upon time it will take. We are now sitting at 09.30 every day He’s said he’ll discharge jury if we don’t finish on Friday” @F_E_Smith
“One of the biggest lessons this year has been this: Enforced speed is the enemy of justice. Dealing in bulk and getting punters in and out quickly sounds great.. but I think the public would feel safer and more confident if we were given time to read and consider” @CriminalPupil
These are just a few of the tweets I’ve seen in the last few days indicating that the courts system is coming apart at the seams. And if you search #thelawisbroken on twitter you will see hundreds more tales of lifts not working and cases adjourned. Last week I sat on a panel (organised by the South-Eastern Circuit of barristers) with Susan Acland-Hood, Chief Executive of the courts service. Around 30 lawyers chose to spend their evening giving their views on court reform, but inevitably the conversation dwelt on the kind of problems described above. I have seldom seen lawyers so frustrated and angry. Poor Susan was patient and courteous in responding, but I think even she was slightly shell-shocked by the palpable unhappiness. And by the scale of the problems – from court closures to administrative failure, from video links which don’t work to cancelled sittings.
Unfortunately I don’t think digital court reform will take us to new sunny uplands of effective courts. And before any of the reforms kick in, there is chaos to be sorted out. The only “saving grace” is that the police are investigating and the CPS prosecuting fewer crimes. So the workload in the courts is reducing. But diminished police resources means some crimes are not investigated properly, and disclosure is bungled.
The wise words of @criminalpupil that enforced speed is the enemy of justice I think provides part of the answer. There is no magic money tree for justice. There should be, but health, education and social care will always get priority when there is any money to spare. The only way of giving all court cases the time they deserve and getting enough money for the courts is to shrink the criminal justice system. Lets decriminalise lots of minor offences like possession of cannabis and non-payment of a TV licence. Lets divert a lot of low level cases away from court via out of court disposals, deferred prosecution and well facilitated restorative justice. Lets reduce the number of remand hearings by remanding fewer defendants. Lets have a moratorium on the creation of any new offences. If we shrunk the system, we might have some chance of paying lawyers a fair wage for their work, and of giving the cases in the courts the time they deserve – which would mean not delaying them because of a shortage of judges, nor rushing them through when they are actually heard.
Pie in the sky you think, but actually we have a home-grown case study. In England and Wales, we have shrunk the youth justice system considerably. There are fewer prosecutions, fewer first time entrants and fewer getting any kind of formal criminal justice disposal than ten years ago, and the child custody population has shrunk by two-thirds. Despite the recent media coverage of serious youth violence, there is no evidence that the shrinking of the system has led to an increase in youth crime (the number of proven offences has fallen by 75% in ten years). Overall the shrinking of the youth justice system has led to fewer children being criminalised and to the remaining money going further. I would shrink the system even more through raising the age of criminal responsibility and raising the prosecution threshold, but I feel the shrinkage so far has been positive. And it has, for the most part. been tolerated by politicians and the public. So lets try shrinking the adult system so the money available might possibly be sufficient.
The removal of Michael Spurr as head of HM Prison and Probation Service today gives one to think about what it means nowadays to head up any of our public services.
I worked with Michael when I was FD of the Prison Service, though not closely – he is a deal younger than me and was then I think still an Area Manager. I do not know him personally at all well. Yet directly, and indirectly through those who have been closer to him, I know him to be an outstanding manager, of a kind that the great British public, our media, our politicians whether Left or Right, neither understand, nor are properly grateful for. (The one exception, curiously, was Jack Straw who, whatever his other faults, did know when he was well served, and did not interpose the bodies of his servants between himself and enemy fire.)
Spurr is a man of great integrity, utterly dedicated to his chosen profession and with a deep moral and, I suspect, specifically Christian understanding of its importance – an insider told me that while he shrugged off the machinations of his own MoJ colleagues against him, the one time they saw him really low was after the grisly suicide of a young prisoner. He is utterly without what used to be called 'side' - which in a world of spite, panic and malice (good name for a firm of PR consultants?) could make him seem naive, and a ready victim for less ethically burdened civil servants and politicians.
His removal – the exact term I believe, for Spurr has rejected the kind invitation to shoot himself from the Permanent Secretary, Richard Heaton, the man at the top for the MoJ, who himself seems to carry personal accountability for nothing whatsoever, despite having presided for years over the utter degradation of our entire system of justice in this country (sometime, I must write about Permanent Secretaries, those parasitic growths on the body politic – do you know, in the past 70 years, not one in any area of Government has ever been sacked, while in the past 25, we have seen two heads of the Prison Service dismissed, the Worshipful Guild of Permanent Secretaries looking after its own, always), and instead to has chosen to await either redeployment or a real sacking, much as his predecessor Derek Lewis famously declined to step down when invited to do so in 1994 – his removal, I was saying, is desperately unfair. For once, Lord Falconer has it right:
“Michael Spurr is a terrific impressive decent public servant who has given his working life to prison and probation, and has been dealt as shitty a hand by the government as it is possible to deal “.
It was to, be sure, not Spurr's brilliant idea to cut staffing by a quarter while allowing prisoner numbers to increase, nor his idea to tear the probation service to shreds and half privatise it in a tearing hurry, on no evidence at all and with no escape route should the change prove disastrous, as it has. The people who deserve the blame for destroying these services are: Grayling, Gove, Truss, Gauke and Stewart. (I leave out Lidington because he was only there for 15 minutes). (A correspondent says I am too severe on Stewart, who he says has good intentions: but when people are dying and lives are being destroyed because of irresponsible cuts and botched privatisation, I am not in the least impressed by intentions, if fine words are not backed by more money, more staff, reduced demand for prison places and re-nationalisation. Not to mention an apology, damn them!)
I am sure that Spurr warned Minsters very explicitly of the risks they were running, and serialisation of his advice and minsters responses would make a good read: would it not, Messrs Grayling and Co (not to mention the strikingly pointless Heaton)? So I foresee his being paid rather a lot of depart quietly, backed naturally by a gagging clause to avoid any unpleasantness for his masters.
And yet. When Spurr began in post, both services were in as good a shape as anyone could recall in living memory; today both are in scandalous disrepair. Can the great British public, with its insatiable demand for heads of poles, really be blamed for assuming that the leader of the services must have some part in their dismal decline? After all - it all happened on his watch (one of his mistakes was to stay too long - and his luck eventually did run out).
And Spurr's case does illustrate the dilemma of any decent, able public servant in an era of austerity. What is one to do, after all, when the Minister tells you that come what may, budgets must be cut by 25%? You protest, you warn, you argue, you are overruled. Then what? You can resign, of course. Some might blame Spurr for not doing so then, and think him weak and venal for not choosing that way out. But if this is what you have given your life to this work, if you believe that if you go, much worse will follow, that there isn't yet anyone remotely ready to succeed you, that you alone have the capacity to make this risky change happen in the least damaging way, that your colleagues are desperately looking to you to see them through unparalleled dangers, then quitting might well seem unthinkable cowardice.
But if you stay, then what? The terrible truth is that you yourself must become the instrument of the policies you so opposed. You must devise the detailed plan to make it all happen, and you must persuade colleagues, and unions, that it will work, and that they must cooperate with it. And that is what Spurr did. And of course, his enormous skill in management and his reputation and standing amongst prison governors, and prison pressure groups, made it easier to do. It was Spurr who persuaded colleagues and unions that the service could run safely with much lower staffing levels and much lower starting pay, and that yes, the fragmentation and selling off of probation really could be done, and to an absurd timetable. And the fact is that he did these things superbly well – the Service when I was there could never have managed doing so many radical changes, so quickly, so well. It was a tour de force of management, though whether it was the right change is, as I said at the time, another matter entirely.
For that is what leadership means. You cannot stand there and say, Minsters demand that you do this, I advised against and frankly wash my hands of it, but you must go ahead nevertheless. That would be a truly reprehensible abdication – taking the money but not dong the job. As though a WW1 General were to say to his captains, walking into German machine guns under massive bombardment is obviously suicidal, you'll all be killed - but off you go! You have to say, this time we've got ever so many more big guns, we've finally timed the bombardment right, this time we'll smash their defences first, you'll punch right through them and might end the War, go to it! And if you have integrity, you can only say it if you to some extent believe it.
So I conclude, with the greatest reluctance – because I have some measure of the moral nature of this man – that someone in Spurr's position cannot, in fact, avoid contamination by the policies he was obliged to implement. And I would be surprised is that is not one of the burdens he now feels most acutely. For men like that do not need Daily Mail attack dogs to remind them of their failings: their own conscience stands fiercest in judgement.
And so I think it must be for anyone at the top of public services systemically degraded by austerity – chief executives of hospitals faced with impossible 'efficiency' targets, police chiefs with too few officers to attend to 999 calls, army chiefs who know equipment is steadily falling below the standards of a modern army, school heads forced to rely more and more on untrained 'assistants'. And of course - this is sadly not yet understood – it applies equally to leaders in outsourced services. Directors of SERCO, G4S or Sodexo prisons who also have to deal with rising numbers of drug intoxicated prisoners with too few staff on too little pay and Minsters and media in scapegoating mode. And one wonders, why anyone of real capacity and worth would wish to to lead our public services in such a climate? Where to implement austerity means to be personally implicated in it. And then to be blamed for the consequences.
One can imagine this done with integrity. That is to say, neither the Tory refusal to acknowledge that deep cuts mean poor services, nor the Labour pretence that everything can be made affordable by pushing the printing presses into overdrive and massively increasing the tax take from the private sector- just as we tilt into Brexit-inspired recession. Imagine, instead, a reasoned, just assessment that such and such are the priority groups, and this standard is the best that we can with limited means realistically hope to do for them, more we cannot, however much we want to, and awful though it may be to accept that. In the prison service, it would take a different form – acceptance of a reduction in crazy levels of incareration, knowing that only with fewer prisoners can prisons be run decently. In such a world, we could be demanding but fair to our public service leaders.
The reason we don't live in such a world is not, ultimately, the politicians or the journalists – it is ourselves. The great British public believes it is entitled to excellent services without paying for them. Until recently, a clear majority opposed any increase in their taxes to save the NHS; one in 3 of us doesn't pay anything into a pension, though we know that life on the state pension is a miserable business; from the Right there is hysterical anger that someone lucky enough to own their home should be asked to contribute some of its value to their care in old age (better it seems that people who don't own their homes, or anything at all, should be forced to pay for them!); someone will bail us out, we assume and if not, watch out. Likewise we want to lock up more and more offenders, but not to pay the bill. The British really like their sour cocktail of unrealistic entitlement, vicious resentment when it is not met, and gloating dispatch of the chosen scapegoats.
Which is where Spurr comes in.
Once a year I take time off from chronicling the remorseless destruction of our public services, and the monstrous act of self harm that is Brexit, to celebrate the art of glass. Today, I introduce one of the most beautiful things I have ever seen - and heard. It has for its subject, and in its making, the very best of England – from a time before 'England' meant bilious resentment of foreigners, incontinent nostalgia, football thuggery and fifth rate Churchill impersonations. This story is the more striking because composed of so many layers – of different people, and different art forms.
Start with Rex Whistler, a minor but then highly fashionable painter between the Wars (how long will that remain meaningful ?– between which wars, the young will soon be asking). He was a 'bright young thing' - knew Evelyn Waugh, Cecil Beaton and so on. He painted the mural you see all around you if you eat in the Tate England Gallery restaurant and another, much better one at Plas Newydd, the seat of the Marquis of Anglesey. He joined the Welsh Guards in the War and was killed soon after landing in Normandy, aged 37.
His death was a terrible blow to his brother Laurence, who had always looked up to him, and rather lived rather in his shadow. Laurence was a glass artist, who is often said to have 'revived' the English art of glass engraving, but nothing of the sort, really – he invented a unique personal style, more like sketching or watercolours. His work is extraordinarily light, both in touch and quality - often a picture is barely outlined, leaving the untouched part of the glass to suggest the rest (1). He was a master of stippling – pictures made of hundreds of tiny indentations on glass, made with exquisite patience, using a tiny diamond tipped pencil (later, he used electric drills, on larger pieces, but hand stippling was his trademark). His pieces are often of the English landscape, and have a very distinctive brooding, numinous, somewhat melancholy quality about them.
In 1985 Laurence created an extraordinary memorial to his brother, in the form of a large glass prism. The prism was of Steuben glass, made by the great manufacturer, Corning, lead glass with a very high refractive index. Whistler engraved it on all three sides, so that while looking at each surface you can also see through to the other sides from 'inside', if you see what I mean. His subject was, again, 'England' – Salisbury cathedral and the house in the Close which Rex had leased. It was then housed in a lantern presented by the Welsh Guards, cast by Richard Cowdy, built by Henry Bowler-Reed and Tony Wallis and later gilded by Richard Healy - more crafts and artists. It is on display in the Cathedral, mounted on a slowly revolving turntable, so constantly changing.
About 10 years ago, the turning prism was videoed by a You Tuber by name of hnmcmurray (who I suspect must be Professor Hamilton McMurray, leader of the Corrosion and Coating Group within the College of Engineering at Swansea University – whoever he is, I and others are so grateful to him).
But there is more. The maker of the video chose extraordinary music to accompany it. It is a setting of an English ballad dated to 1611, but probably much older, 'Three ravens', about the eponymous birds who sit watching the corpse of a fallen knight and debate whether to breakfast off him. Here are the lyrics:
There were three rauens sat on a tree, downe a downe, hay downe, hay downe,
There were three rauens sat on a tree, with a downe,
There were three rauens sat on a tree,
They were as blacke as they might be.
With a downe, derrie, derrie, derrie, downe, downe.
The one of them said to his mate,
Where shall we our breakfast take?
Downe in yonder greene field,
There lies a Knight slain under his shield,
His hounds they lie downe at his feete,
So well they can their Master keepe,
His Hawkes they flie so eagerly,
There's no fowle dare him come nie
Downe there comes a fallow Doe,
As great with yong as she might goe,
She lift up his bloudy head,
And kist his wounds that were so red,
She got him up upon her backe,
And carried him to earthen lake,[pit]
She buried him before the prime,[canonical hour=6 am]
She was dead her self ere euen-song time
God send euery gentleman, Such haukes, such hounds, and such a Leman [mistress].
Then the music: a truly thrilling setting by John Harle, saxophonist, musical educator and most eclectic of modern English composers. And sung by Sarah Leonard, a fine English soprano who specialises in what people call contemporary classical music.
Here it is. I came across it accidentally while googling Laurence Whistler. It shocked me then, with its unearthly beauty, and the richness of layer upon layer of arts and artists. I hope it will shock you, too. NB keep the sound up!
As well as the two Rex Whistler murals I refer to above, there is a fine brooding oil self portrait of him on the day he got his Guards uniform, in the Army Museum in Chelsea (he had a premonition of death in the War - or perhaps a wish - and it shows here) - and by contrast, a delightful fresh, very erotic, nude painting of Lady Caroline Paget, daughter of the Marquis, painted I assume at Plas Nwydd, one summer before the War. Their affair didn't last of course – she married a neighbouring aristo (2). Was there a trace of Rex in Waugh's Ryder at Brideshead?
Among the finest of Laurence Whistler's work is in the Church of St Nicholas, Moreton, Dorset (difficult to find, but there is or was a superb tea room next door of which we were the only customers, and a brook nearby where we saw kingfishers). The church must be unique, mostly it is large windows which have been all left in clear glass for the engraving, so masses of light - and what pictures! (3) One which always impresses : it's of an aerial duel during the Battle of Britain between an English and a German plane. Far below you, you can see the cottage where the Englishman lived. In the far, far distance, across the invisible Channel you can just see the fields of Normandy (where Rex was to die), so like and yet unlike those of of England directly below. The window is dedicated to the English airman who died. The two plans chase each other, smoke and vapour trials tracing a pattern in the sky. I wouldn't have noticed had the guide book not told me, but the pattern they make is....the Christian Chi Rho. It always makes me catch my breath.
Another piece, lighter in mood, is in the Ashmolean here in Oxford. It is a bowl that also revolves slowly on a turntable (an old record player, staff say). It shows a cottage in a wood – the cottage of fire – the cottage ruined and grown over. Unhappily, it turns the 'wrong' way, so the story goes contra-chronistically: ruined cottage, cottage on fire, cottage before fire. Time travel!
(1) Whistler on his art:
"Glass is a good medium for expressing notions of light, because the engraver works exclusively in light, arresting it on the surface -- catching it by scratching -- then using it as paint or as ink, being incapable of adding one shadow to the picture, leaving shadow to pretend to be there when really it is only the dark background (always granted a dark background), as it shows through the places unengraved. Viewed against a uniform pale sky the picture becomes muted or as if erased. The light needs the dark to be articulate. Which may be true of life itself, and the meaning of the darkness in it, granted one is open to a meaning. Positive and negative are in perpetual necessary balance; but the positive is light, and only light.
"This paradox and this elusiveness are in the nature of clear glass, considered as a minor graphic medium. The engraved image hangs insubstantial and precarious, uncertainly suspended, as it seems, on nothing."
(2) A marriage of convenience, as both were mainly gay. Her husband used to play pranks by unexpected visits to friends dressed as Queen Mary, until one day he called thus - and the real Queen Mary was already there. I'd pay good money to have seen that.
(3) All the windows had been blown out by a bomb in 1940 - dark Victorian glass which Whistler describes as 'not much regretted'.
(4) Maud Russell, last of Rex's patrons, noted on the day she heard of his death: "“During dinner Eddy told me Rex had been killed in Normandy. I felt a great pang; but I knew he would be killed. Everybody knew it. Lovely Rex; difficult, strange, rare, unhappy Rex.”
When you find your view is the consensus view, in fact no one is taking a contrary view, it's wise now and again just to step outside and do a reality check.
So having just written about the undoubtedly appalling state of Birmingham prison, I decided to sample all 10 of the Inspectorates' reports published this year so far. [Granted, the Inspectorate is not itself infallible. In retrospect, its report last year on Birmingham now looks over-optimistic. But overall, its methodology is principled, evidenced, balanced, and its judgements are objective and trusted.]
I was taken aback by the positive findings for the majority of these 10 prisons. Reports on Wandsworth and Belmarsh were critical – but have a look at these extracts from reports on 6 prisons and YOIs below – including (Guardianistas please note!) two operated by the private sector, one of them G4S.
Some of this might seem a tad generous. Hull. for example, where incidents of self harm are nearly four times what they were at the start of this decade, and assaults nearly three times higher. To say it compares well with other locals just shows how far standards have fallen. Or Oakwood, where assaults have more than doubled in just 3 years. But none of these are 'failing' prisons, either in the Inspectorate's assessment or MoJ's, and some are doing pretty well. And deserve to be recognised as such.
This does not change the overall picture. Violence and self harm across the whole system are double what they were just a few years ago and are still rising, drugs are rife, ), there is gross overcrowding and numbers are still rising, regimes have been brutally curtailed, MoJ itself rates nearly half its prisons as giving cause for concern (compared just to 3% in 2010-11!). But we should recognise that there are still some prisons where staff are doing a decent job in difficult circumstances – and that the worst problems tend to be concentrated in the local prisons, further cause for doubting the efficacy of short sentences.
Note: the Inspectorate's ratings are against four headings: safety, respect, purposeful activity and rehabilitation/release planning. Ratings are: good;reasonably good, not sufficiently good, poor.
HMP Oakwood - mens' Cat C resettlement - G4S
Ratings: safety, rehabilitation: reasonably good; respect, purposeful activity: good
We found Oakwood to be an impressive institution; against all four of our tests of a healthy prison, we judged outcomes to be reasonably good or better. As such, the assessments we made were consistent with a story of steady and sustained improvement after what was a testing start six years ago, and this despite risks represented by the size of the population and inherent risks posed by those held.
Hull - mens' local - public
Ratings: safety, respect, purposeful activity, rehabilitation: all reasonably good
We last inspected in 2014 when we found mixed outcomes reflecting the challenges faced by similar prisons, but Hull was working well in comparison to most other local prisons. At this inspection we found a not too dissimilar picture, with outcomes that we judged to be reasonably good against all four of our tests of a healthy prison. In the context of the challenges faced by the prison system in recent years, this was not an insignificant achievement.
Wetherby YOI – public
Keppel Unit is a specialist unit within Wetherby
Wetherby ratings: safety: not sufficiently good; respect, purposeful activity: reasonably good; rehabilitation, good
Keppel Unit ratings: safety respect, rehabilitation: all good; purposeful activity, reasonably good
….it was reassuring to see the very real progress that had been made at both Wetherby and the Keppel unit. By any standards this was a good inspection, with improved assessments in every healthy prison test at both sites, except for that of safety at Wetherby, which remained ‘not sufficiently good’. I was last at Wetherby two years ago and the positive change in many areas was clear to see. A far more positive attitude permeated the establishment, relationships between staff and boys were generally positive, with many staff showing what seemed to be genuine commitment and indeed, in some cases, a passion for their work.
Dovegate - mens' Cat B Therapeutic prison - SERCO
Ratings: safety, respect: good; purposeful activity, rehabilitation: reasonably good
Dovegate TP was impressive. A national resource, it was part of the offender personality disorder pathway. It worked with men intensively over a period of years to better understand their problematic behaviour, attitudes and thinking patterns and to help them change. Most men who reached the end of the process made progress, and over 80% of respondents in our survey said they felt they had done something at the prison to make it less likely they would reoffend in the future.
Low Newton - women's' resettlement prison and YOI – public
Ratings: safety, rehabilitation: reasonably good; respect, purposeful activity: good
Low Newton remained an excellent women’s prison where leaders and staff understood and managed the complex mix of risks and needs well. Some robust action was being taken to address the use of illicit drugs and associated violence and bullying, and staff were skilled in challenging poor behaviour when it occurred. They also provided excellent care when needed, which many women told us they appreciated. The regime was purposeful, and the generally good resettlement provision supported efforts to rehabilitate the women. We commend the work of the governor and her team at Low Newton,
Werrington - boys' YoI - public
Ratings: safety, purposeful activity: reasonably good; respect, rehabilitation good
We found not only that standards had been maintained, but that in the area of respect they had improved and now merited our highest assessment of ‘good’. By any standards this was a good inspection, and showed what could be achieved in an area of custody that has drawn considerable adverse comment in recent times, not least from this inspectorate. Much of the progress that had been made had come about as the result of good partnership working with other bodies, including in education, health and the voluntary sector. It was also particularly pleasing to note the very positive response to previous inspection recommendations.
In my recent post on probation privatisation (here), I noted that while Gauke claimed the private sector has cut reoffending by 2%, he didn't say how the NPS had done, but that I would ask.
MoJ say they do not in fact know how the NPS compares. The performance of the CRCs is measured against a 2011 baseline. Because the NPS isn't paid by results, no one thought to establish a baseline for their performance. So we don't know, and won't now ever know, whether the public sector did better or worse than the CRCs.
That is pretty odd. Granted, Grayling himself of course did not need that information, because he already 'knew', in his Trumpian way, that the private sector would do better. (Same reason he aborted the payment by results pilots in prisons). He was perhaps wise not to measure the actual performance of the NPS, because reality has an unpleasant habit of biting back at people who just 'know' things.
But I am surprised that officials did not think it worth knowing whether the public or private sector are 'better' at cutting reoffending. After all, the NPS in its present form is a new organisation, dealing with a new and more difficult mix of people: yet MoJ seem to have no interest in knowing whether it is successful. [MoJ point out that the case mix of the NPS and CRCs are very different so the two aren't directly comparable, so the reoffending rate for the NPS offenders would always tend to be higher - true, but I see no reason why you should compare the % reduction in the reconviction rate, if you see what I mean. ]
But I note that that in the 2 years before privatisation, when the only operator was the public sector NPS, there was a drop in reoffending for those given community sentences by 4.3%. So, if you believe that probation's success can be measured by the reoffending rate, the public sector before privatisation did twice as well as the CRCs after privatisation. Tables C1a of the latest 'proven reoffending tables' here. (MoJ will say that's not comparing like with like exactly and that's true, it isn't – but whose fault is that, MoJ? You chose ignorance, so now we have to use whatever data we can.) So the line about CRCs making a difference is nonsense, even in its own terms.
For my own part, for all the reasons set out in my earlier post, I do not believe that changes in the reconviction rate are reliable as a measure of the achievement or failure of the correctional services.
Any more than changes in the overall crime rate (of which reoffending is, of course, just a small part) represent the success of otherwise of the criminal justice system.
NOTE [added 1 September: I have received quite a few comments privately on this piece; I have summarised some of general interest at the end]
I have been reading the report of the internal MoJ inquiry into the major riot at Birmingham prison on 16 December 2016, which had been withheld, but then released this week following a Freedom of Information Act application. It has been redacted, but not much.
The report, by a former Director of what was then the National Offender Management Service (NOMS), is a most illuminating document, detailed, balanced, thoughtful. It not only casts light on how Birmingham prison reached the dire state described by the Chief Inspector in his Urgent Notification last week, but vividly illustrates perennial truths about how to run – and how not to run prisons – and what a difficult and important a job that is. Anyone seriously interested in prisons ought to find time to read it.
It comprises first an analysis of what happened on the day of the riot, and second how the prison had deteriorated in the preceding 12 months, to the extent that staff had effectively already lost control well before the riot.
I am not primarily interested in the actual riot, but the detailed, minute by minute account of the loss of control is as gripping as any film – quite terrifying. It sets the scene by describing how staff shortages and high turnover over many months placed staff, inadequately supported by management, under intolerable pressures and lead to disrupted regimes which in turn fueled prisoner boredom and discontent, and how staff gradually ceded control of the wings to prisoners. Then, on the day, an act of defiance by a couple of difficult prisoners gradually escalated, needlessly, as several opportunities to contain things and regain control were lost due to muddle and lack of grip by middle and senior management. Prisoners reacted to indecision by turning to violence, and soon even those who'd have preferred to stay out of it felt obliged to join in.
But the report also records some acts of great courage by staff, in rescuing vulnerable prisoners from danger and holding vital control points despite ferocious assaults by groups of prisoners. One scene sticks in my mind: one wing had been lost, staff were running for safety, but one staff member saw a vulnerable prisoner who he knew would be severely beaten or worse, ran back at great risk to get him and they both then pelted down the wing for safety, closely pursued by a mob. 'The PCO described his good fortune at managing to unlock and secure the gate first time...' I bet he did, but not in those words! Once safe, the prisoner vomited with terror and relief and then would not leave the PCOs side. G4S failed abysmally - but some of their staff past the test alright. I do hope their courage and professionalism has been recognised.
The second part of the report analysis how control was eroded over the preceding year or so and it is hugely illuminating.
First of all it confirms what I have been saying, that the prison which improved markedly after transferring from public to private sector management in 2011. Two things confirm that. The first is research by Alison Liebling and others which showed improvements on 7 dimensions of prisoners' 'quality of life, as defined and measured by them: ‘respect/courtesy’; ‘humanity’; ‘decency’; ‘care for the vulnerable’; ‘staff-prisoner relationships’; ‘fairness’; and ‘personal autonomy’. Even more marked were improvements in the quality of staff life, including relationships with line and senior management – an extraordinary and important achievement, considering the feelings aroused by of the competition in 2011 and the highly contentious move of existing staff to the private sector, the first time this had ever happened and (as I know) long the source of much worry amongst policy makers (1).
This progression is confirmed by NOMS own Prison Rating System, a sophisticated analysis of many aspects of prison operation, over the same period. I reproduce a graph, showing this improvement according to the PRS after privatisation in 2011, up to January 2015, and the precipitous decline thereafter. (Note the steady decline in public sector prisons right across this period).
Chart 1: ratings of Birmingham and other local prisons, NOMS Prison Rating System
Thus, two lessons immediately: 1) privatisation was not the issue (in fact, privatisation had initially lead to much improvement, albeit from the low level in which previous public operation had left the prison); and 2) the decline began way back - two and half years ago.
The report doesn't help pinpoint quite why the prison started its rapid decline around January 2017 though there is some suggestion that the drug problem became much more serious around then, and it was just at that time that assault and self harm rates began to accelerate upwards across the whole system, so the cause or causes weren't peculiar to Birmingham.
Staffing levels, and management of staff, are central issues. Mapping the data from this report onto data I previously obtained under FoI, budgeted staffing levels (302 PCOs) have not changed significantly since 2013, and probably not since privatsation in 2011. Neither budgeted staffing levels not the number of posts vacant (about 3%) were out of line with other prisons – on my analysis, the staff:prisoner ratio was considerably better than Doncaster or Thameside, and about the same as Parc.
Chart2: Prisoners per PCOs at Birmingham and comparator contracted prisons
Source: PQs and FoI applications
Note: figures affected by reduced pop after 2016 riot
But the staffing situation was nevertheless very difficult indeed – dangerous, in fact - for several interconnected reasons:
Thus the planned regime simply wasn't deliverable with available staff numbers. There weren't enough staff on landings, prison routines were constantly disrupted and many staff were new, insufficiently trained and scared. As we know from previous breakdowns in privately run jails (3), this quickly become a downward spiral - with new staff appalled at what they are faced with and choosing to quit or, if they stay, adopting passive and defensive behaviours rather than challenging misbehaving prisoners. Staff complained that they were poorly supported: 'new staff....reported feeling ignored and marginalised, and made to feel like a nuisance when they asked for help'.
Management was suprisingly weak in many other ways. Managers insisted staff maintain a 'full regime' despite low staff availability - but it wasn't even clear to staff (or the inspectors) exactly what 'the regime' was supposed to be! Policy on unlocking was also unclear and staff seemed to make it up as they went along.
The consequence of all this was a gradual retreat from authority, a process so familiar in prisons. Prisoners bullied and conditioned staff into unlocking everyone, whether entitled or not, and the IEP scheme, meant to relate privileges to behaviour, was hugely undermined. Unlocking everyone despite dangerously low staff availability became the norm, with staff unable to reconcile safe staffing minima with management's demand that they to keep prisoners unlocked (4). Staff over relied on prisoner volunteers to keep order, and some of these were not averse to using violence to do that job (and possibly some had other agendas of their own). The jail really had been turned over to prisoners to run! Extraordinarily, prisoners who wanted to be unlocked into this unsafe environment were asked to sign that they accepted the risks, an absolute abdication of responsibility by staff (and G4S). Staff seemed to loose control of such a basic thing as movement around the prison. Discipline was effectively abandoned - in one period only 1 in 6 serious assaults were referred to the police, of 655 cases so referred only 1 in 10 lead to a conviction. Violence went unpunished and drug taking went unchallenged. Vulnerable prisoners were not properly protected.
Prisoners' attitudes in such circumstances varies – some relish the lack of control, but others find it threatening and difficult, finding they were unable get the help prisoners need from staff to get things done:
“There as too much freedom,we like freedom but there weren't enough staff to deal with it. You weren't made to do anything, no discipline, no structure ...You couldn't find any staff...they let us get away with anything. Every day was a party. But boredom leads to badness”.
“Boredom leads to badness” - that should be inscribed above the gate of every jail.
The result was soaring rates of drug taking, self harm, and prisoner on prisoner and prisoner on staff violence.
Chart 3: number of PCOs, assaults, self harm incidents at Birmingham, all per prisoner
Note: PCOs on right hand axis, other data on left axis
The management response was hopelessly inadequate. There are processes to ensure data such as assault and disciplinary rates are regularly reviewed in jails and that Governors/Directors regularly assess the stability of the jail. At Birmingham management assessed the jail in the weeks before the riot as 'low' i.e. 'there is no evidence of increased stability or instability above the norm'. That had been the rating throughout 2016, as every indicator turned glaringly red. The report suggests that management had been conditioned to accept very high levels of violence as the 'new normal'. In plain English, management had completely lost it.
And not only management. Each private prison has a number of MoJ officials – 'Controllers' – permanently working inside the jail to monitor operations. Here the report is more reticent, but it appears to confirms what a number of commentators have remarked on, a tendency of the Controllers to retreat into bureaucratic box ticking role. If they had walked the walk and talked to staff and prisoners, and taken a more common-sense over view of the state of the jail they could not have missed the seriousness of its rapid deterioration. But the role of Controller has always seemed unclear, and it's a difficult job to fill, because you need able experienced Governor grades, but such people would rather be off running their own jail.
What does the report, on a riot 20 months ago, tell us about the run up to the Chief Inspectors extraordinary intervention last week? Difficult, because until the full report on this most recent inspection is published, we don't know what happened in those 20 months. But I think we can already say:
More general thoughts prompted by reading this extraordinary document:
(1) In my time it was thought too risky to attempt without much reducing prisoner numbers during transition, something we never had space to do.
(2) Rates this high were common in privately run prisons in the early 2000s and as recounted in my book, were key in bringing several to crisis point. Public sector rates were then very low – possibly too low. I had been told that changes in the labour market after the 2008 Crash had brought rates right down, to 10% or so: but clearly, not everywhere. The Crash feed through into austerity and big cuts in starting pay in the public sector, raising public sector churn rates and contributing to problems they have been experiencing. One conclusion is that Government should publish staffing levels in all prisons, public or private, and also vacancy and churn rates
(3) Particularly, at Ashfield in the early 2000s, described in my book, in the section 'Four prisons in trouble' – the only other time that Government has intervened to take over a failing privately run prison.
(4) Management's insistence on keeping prisoners unlocked, even though for many, there was nothing for them to do is odd, because it appears there was nothing in the contract to require this.
(5) Curiously, there were significant financial penalties in respect of this prison in 2011-12 (£95k) and 2012-13 (£205k) – the very years when the prison was doing OK! See Commons WA 5.10.16
(6) “Overall, Altcourse was in some key areas bucking the trend when compared to other local prisons. While it still faced significant challenges around safety, the downward trend in violence and anti-social behaviour was highly creditable. This was in no small part due to the energetic and proactive approach taken by the prison. Levels of self-harm, while still high, were also decreasing and there had been a real focus on ensuring men with these vulnerabilities were identified and cared for. This had been supported by a positive staff culture, a good focus on decency, and an excellent regime that was being delivered consistently….. the director and his team were providing strong leadership, enabling a highly positive staff culture and delivering good outcomes in many key areas. Overall, Altcours e showed that a local prison can provide fundamentally decent treatment and conditions for prisoners, despite facing many of the same challenges as the rest of the prison service. There was much here from which others could learn.“
Stick that in your pipe and smoke it, Guardian!
(7) 'Crime, justice and protecting the public'. Home Office, 1990
Rory Stewart's promise to resign if he doesn't cut assault rates in 10 violent prisons by at least 10 % in the next 12 months – very precise figures, those! – looks at first sight entirely admirable (1). Brave, certainly, even foolhardy, given the relentless upward surge of violence ever since his predecessors cut prison staffing levels by 25% in 2013 (assaults up another 15% last year alone). And a welcome change from the usual evasiveness of politicians. And no one can doubt Stewart's passionate belief that prisons must do better – or that he is the one to make them do it. It's rare that we hear such belief in public services from a Tory politician, in this age of austerity, and Brexit.
And yet, it's an odd and, I think, inappropriate thing to say.
Those with long memories may recall Martin Narey's threat, made in 2001, to resign if he couldn't turn failing prisons around (2). But there's a big difference: Narey was chief executive. It was his job to run prisons. Stewart is minister, not chief executive; though, as I have previously noted, he continually blurs the two roles. (And it's noticeable that since he arrived, the actual chief executive, Michael Spurr, is never heard from or seen (3)). But the execution of a complex programme of intervention in 10 prisons, to see what can be done to reduce violence – that, surely, is an executive job, for which the chief executive should be answerable? (Odd to think how hard Michael Howard fought to avoid resigning, on the grounds that 'operations' was not the responsibility of ministers! (4)).
The other difference is that Narey was battling decades of weak, poor management: his threat was a message aimed at the old guard of the prison service, who did not see a need to change. Stewart doesn't have that problem. Actually, what he is battling is the consequence of policy decisions by his immediate predecessors - gross under-staffing: not the fault of officials, but of ministers. Narey's threat had a point: Stewart's does not.
Is it, anyway, a resigning matter - for chief executive or ministers? After all – isn't it a bit odd for a minister to promise resignation over not cutting assaults by 10%, when no minister has offered to resigned over the doubling of assaults so far? And if the reduction is say only 5%, or 10% in some prisons, but less in others - or if it is decided there's a better way, maybe by restoring staffing levels - how does it then make sense to resign? There seems a histrionic air about this, rather than sound political judgement.
Stewart seems to have fallen in love with the strange but compelling world of prisons – as some outsiders do. Prisons are fascinating - because they are a world of their own, because there are so complex, because so much is at stake. It is rumoured that Stewart wants to swap the ministerial role for that of chief executive. Maybe Stewart would make a good chief exec, in due course. (Though it's a bit hard to see him as a civil servant, bowing to ministerial wishes and sensitivities – especially under a Labour Government).
But at present he's the minister, and it's a bad idea to have a minster trying to directly manage a public service, as Stewart seems intent on doing. The separation between policy making and executive management was at the heart of the Agency concept launched by the Margaret Thatcher in the '80s – with strong, visible professional leadership, empowered to run the service directly, freed from ministerial micro-management, but held publicly to account for performance within a policy framework set by ministers.
That idea enabled to prison service to turn round from being the basket case of the public sector in the early 90s, survive the fastest ever rise in numbers and innumerable scandals in that decade and become a far safer, more controlled, more decent system in the 2000s. It's a concept now empty of meaning in the case of HM Prison and Probation Service, with the motor powers of any service – its finance, HR, IT and estate services - now taken back to the centre of the MoJ, whose record in those matters is not to be envied, and the chief executive has been made invisible, while the minister assumes the management role.
The political and the managerial are rightly separate spheres, different jobs, both need doing, the one complementing the other, but requiring different skills, expertise and behaviours, though to be sure, they need to understand and respect each other. Stewart has shown remarkable grasp of the realities of prison work - but he hasn't worked in a prison, as has every head of the service since Richard Tilt in 1995, a change which in my view has made all the difference. And he shows a tendency to believe think prisons can be run like a military command – by no means the first to make that mistake (5). In my long experience as an observer of prison management, good and bad, the command and control model has its limitations: eventually, you must let Governors and their teams do the job they are paid for and trained for. It's also more than a little worrying how Stewart is always so sure that he is right. In excess, that can be a dangerous quality.
And here's the nub of the matter: as Peter Dawson, who heads the Prison Reform Trust (himself a former Governor) points out, ministers need to focus on doing the things which only ministers can do: policy, and politics (1). And this is where Stewart, and Gauke, fall down. Only minsters can tackle our over use of custody, which has caused gross overcrowding and a repeated need for massive building programmes - which are in turn overtaken by further rises in numbers. That means not just legislation, but educating the Neanderthals on his own benches, and in the Tory press (and maybe outing Labour on the issue, too) . But Stewart, while agreeing that we use prison far too much, seems already to have thrown in the towel on penal policy (6). Again, only Ministers can secure adequate funding for prisons: but Stewart shows no sign of repenting of Grayling's savage and irresponsible staffing cuts, which are at the heart of the current crisis (***). Even so, MoJ is racking up an enormous deficit which, after the retrenchment of the Grayling years, looks set to make MoJ the Black Hole of public finance, just as we move towards another recession. Nor are ministers willing to accept responsibility for the chaotic mess which Grayling's privatisation policy made of the probation service, itself a factor in the burgeoning prison crisis, as courts lose confidence in community sentences (7).
In many ways, the ministerial job is the less attractive of the two. But it is Stewart's job, and he should get on with it. And let Spurr get on with his.
*** In fact, under pressure on BBC 4's 'Today' this morning, he came close to conceding that the Grayling cuts were too deep: https://www.independent.co.uk/news/uk/politics/prison-officers-cuts-hmp-birmingham-g4s-rory-stewart-justice-department-a8498981.html
The traditional time for burying bad news is just as Parliament rises for the summer hols. So, no surprise that Gauke chose 27 July to announce early announced termination of the probation contracts (1). For it is a study in failure – one failure heaped upon another.
Failure to admit failure
A policy that was predicted by absolutely everyone to be bound to fail, has now been demonstrated conclusively to have failed. You might have thought therefore that the statement might include words like 'unsuccessful', if not 'failed', or even, 'sorry'. Gauke is having none of it. This isn't a statement about what went wrong, oh no, it's a 'consultation' on how everything will be done even better in future. (Those SPADs! Worth every penny!) His statement is a masterpiece of evasion. In fact, reading it, you'd be hard put to understand quite why he is terminating the CRC contracts at all. It ought to be a set text for A level politics.
First, note the title of the consultation document (2): 'strengthening' probation'. A probation service that, according to inspection reports, and to MoJ's own performance assessments (3), was performing well, has been smashed to the ground and is now lying helpless on the floor. But, hey, let's not dwell on that assault, all we are about is 'strengthening' the victim.
Then, the Big Lie: CRCs cut reoffending by 2%, and thus demonstrating the success of privatisation. But he doesn't give the source. or time frame. Nor, of course, does he say what the corresponding figure is for the NPS, similar adjusted for changes in case mix (so embarrassing, if the public sector had done just as well, or better!). I have FoI'd this information and will post it here.
Now, I have set out before why I do not believe that changes in the reconviction rate can be attributed to the work of the prison or probation services. In summary:
Graph 1: reconviction rates by disposal, 2005-16
.Source: Proven reoffending tables July 2016-September 2016, MoJ. Notes: figures are Apr-June each year. Note: New data source from Oct 2015
It is therefore simply not credible to claim that the fall in reconviction rates for those supervised by the by probation services mark the 'success' of CRCs. It is certainly possible that the work of the CRCs made some contribution, also possible that it did not – but to claim 'CRCs cut reoffending by 2%, therefore privatisation worked' is simplistic nonsense.
Gauke continues to elaborate on the 'successes'. ' Privatisation 'opened up the delivery of probation services to a broader range of providers and created the structure that we see today'. Perfectly true. The probation service was hacked to pieces, the pieces flogged off to the highest bidder and that created the chaotic mess we see today.
Then, 'there is strength in this mixed market approach, with scope for a range of providers....to continue to bring fresh, innovative ideas to probation services.' That is not the view of the Chief Inspector of Probation: 'We have seen small innovations – a peer mentoring scheme in Kent for example, and three social action projects in Durham – and some aspects of CRC operating models can be described as innovative as well. But there are few signs of innovation in resettlement work, or in other casework. Instead, well-established evidence-based approaches are on the wane, worryingly so '(6). And on through the gate services, 'the few examples of innovation we saw were on a very small scale, so are likely to have no more than a negligible impact on reducing reoffending'(7).
But the Chief Inspector does recognise some innovation - though not the kind Gauke lauds: 'Some [CRC staff] do not meet with their probation worker face-to face. Instead, they are supervised by telephone calls every six weeks or so from junior professional staff carrying 200 cases or more. I find it inexplicable that, under the banner of innovation, these developments were allowed' (6).
So, how has it all gone? The public sector National Probation Service is performing well, Gauke observes. But CRC contracts have faced 'challenges'. Not 'failure', no – just 'challenges'. What a wonderful word: a 'challenge' obviously isn't the fault of the person being challenged, it somehow just arrives from outside. Moreover a 'challenge' can be quite a good thing, can't it, something you 'rise' to? (Those SPADs again.). But 'difficulties were to be expected'. And that's true - they were 'expected'.
So much for the Ministerial view. Privatisation hasn't 'failed', there have just been some 'challenges' and now we can make it work (even) better by cancelling the contracts. Gauke is hugely better than any of his 4 predecessors (but goodness, what a low bar that is!). At least he is willing to state publicly the obvious truth, that our rates of incarceration are far too high and are a waste of money. But he is also a man whose reaction to shocking failure for which he personally is accountable is to dissemble. It needn't be so. A thing I much admired in Martin Narey, when he was head of the prison service, was his willingness to confront failure, own it, and use his own public dismay to fuel determination to improve. Honesty is not only possible: I suggest it also works better.
After Gauke, we get into the 'official' part of the document, where there is a little more candour. Yes, the quality of service has been 'falling short' in ' a number of areas'. But the reasons for this are 'numerous and complex'. There isn't a much specificity here about actual performance - so let me supply some. Why not start with MoJ's own metrics:
Graph 2: performance against 18 metrics
Source: Community Performance Quarterly Management Information release April 2016-March 2017 Ministry of Justice
Public sector doing what it says on the tin: private sector not doing what it says on the tin. Clear?
Or just review the wealth of testimony from auditors, inspectors, Select Committees.
This isn't a few 'challenges' here and there - it's evidence of serious, system-wide failure.
Failure to understand failure
Gauke says he wants to 'use the lessons we have learnt so far'. That of course requires one to understand the reasons for failure – as well as being willing to acknowledge failure in the first place. What were reasons?
MoJ's view, in the consultation document, appears at first to be that it was just a technical problem - the volumes projections and financial terms and assumptions of the contract (i.e. the guts of any contract!) were all wrong. Specifically:
First: most of these things were known, or should have been known, before the contracts started. The fall in community sentences started nearly a decade before these contracts began. The rise in frequency of reoffending by those getting community sentences has been going on since 2009. And it should have been obvious to MoJ that CRCs should not be judged against a 2011 baseline – 4 years before they started work. CRCs' cost structure should, of course, have been properly researched and understood as part of the procurement process. And that PBR might not be easy to apply the mechanistic way envisaged, and might not produce better results, was very apparent from the ambiguous results from MoJ's pilots in two prisons, but MoJ aborted those pilots early (8).
The second thing is that although MoJ ought to have known these things, there isn't the slightest acknowledgement of its culpability in this report. (No surprise, in a Department which in the teeth of all the evidence to the contrary, tells MPs what a strong financial grip it has (9)).
Thirdly, this isn't the first time such mistakes by MoJ have caused a contract to collapse: the collapse of the Carillion contract was also due to MoJ contracting on the basis of wrong understanding of cost structures, in that case, their own costs that they didn't understand (10).
In short, the document presents the reasons for financial failure as if they were the work of chance or external forces: it fails to acknowledge the extent to which MoJ itself created these difficulties.
But, as we read on, its transpires that there were many other serious mistakes and omissions in the contracts, which contributed to the failure of the contracts. It is astounding, for example, that MoJ wrote contracts for resettlement services that specified only one output – a plan, piece of paper – and nothing about what the plan must contain, let along actual results for real prisoners in the real world (7). Hidden away later in that report are appalling figures about the lack of care for the very prisoners who CRCs were set up to see 'through the gate'. 1 in 3 leaves prison with no where to stay, 2 in 3 of those need help with drug abuse on release, don't get it, only 1 in 6 is in a job a year after release. Never mind – there was a piece of paper filed somewhere with their name on it. How could officials think that was adequate?
Likewise, as the Chief Inspector also observed (why did it take the Inspector to notice how bad things were – did MoJ not know - or was it hoping no-one would notice?), MoJ was so hands off that it didn't think it necessary to lay down any basic requirement for the nature of probation officer/offender supervision – like, they should ever actually meet (6). Or that they should meet somewhere which gives them dignity and privacy – not a public library for example (11).
Likewise, that the contracts don't say much about the content of Rehabilitation Activity Requirement orders (RARs), introduced in 2015, which allow CRCs freedom to do much as they liked. It is conceded that as a result quality is 'patchy' and sentencers 'often' lack confidence in them (contributing to the collapse in community orders and the remorseless increase in custody).
Much of what MoJ says it will now do, in new contracts, prompts amazement that they should only think of doing it now, three years into the contracts. MoJ plans to introduce minimum standards and measures of output – you mean, in 2015 you thought it OK to write contracts without them?
Some of these appalling omissions of what seem essential contents for any service contract must be put down to Tory dogma, a magical belief, that is refuted everywhere by real world evidence, that freed of all requirements to actually do anything properly or decently, the private sector will just 'innovate' its way to outstanding social results. But officials, too, are surely to blame. I very much doubt Grayling told them not to require anything in the 'Through the gate' contracts, other than a piece of paper, for example.
And it is an extraordinary lapse, because the MoJ has not one but two full scale, worked examples of how to specify and monitor complex services for offenders, worked out over many years: the creation of standards for a mixed public/private prison service since the mid 1990s, and the creation of a national probation service in the early 2000s. All these issues about the balance between central specification and local initiative were explored then, and balances set and revised in the light of experience over many years. There is therefore no excuse for having for that balance so extravagantly wrong now.
But it's not just another example of poor contracting by MoJ (12). As the many external reports observe, there was a fundamental design mistake in the whole enterprise – the balkanisation of probation into many separate organisations, creating two parallel services in every area, the public sector NPS and private sector CRC. The problems this would create in a service which already had difficultly in working seamlessly with many other agencies, including the prison service, should have been obvious – and were obvious, to the rest of us.
It should be obvious to the MoJ also - because much of the consultation report is spent spotting ways in which balkanisation created new problems, and then trying to retro-fit some sort of national coherence to this incoherent model. Examples are the difficulty of ensuring adequate professional raining or standards, or [professional development; difficulties in partnership working with other agencies; difficulties of applying performance measures to results achieved through partnership working; difficulties with data sharing and inter-operable ITC. [MoJs promise to invest in ITC to aid data sharing will raise a hollow laugh in CRCs: this is what the Chief Inspector has to say on the subject:
“Despite significant CRC investment, implementation of new IT systems so central to most CRCs’ transformation plans is stalled, awaiting the essential connectivity with other justice systems, yet to be provided by the Ministry of Justice.” (my italics)]
Nevertheless, heroically, MoJ manages to ignore the issue of balkanisation completely, or rather, it has to ignore it, because Gauke has already decided that he will not countenance a return to a national service – because that would have to be a publicly run service. This means the report completely fails to identify the basic flaw of the design of this brave new world.
Failure to learn from failure
MoJ won't acknowledge the extent of its failure, or its own contribution to failure, and mistakenly thinks, or pretends to think, that the reasons for failure are limited to technicalities of the contracts. No surprise, then, that it shows every sign of failing to consider a different approach, one that might stand a better chance of success. Instead, they propose to repeat the failed experiment, on slightly different terms.. It is probable that new contracts which will give the CRCs more money will lead to some improvement in their performance. However the problems due to a fractured, balkanised service will remain.
What lessons should have been learned?
To which I add: this saga shows - yet again – that there is a major flaw in our Parliamentary system in that it does not permit Minsters (or civil servants) to be called account for their failures, however catastrophic,if they have managed to move on before disaster is evident. Parliament should change the rules and summon the guilty back to face the music. Starting, of course, with one Chris Grayling.
What should be done now? I don't know enough about probation to say confidently what the right model is to adopt now. But I do say that given the lessons spelled out above, it is irrational not to carry out a detailed and objective assessment of an option for returning to a single, national and mainly publicly run probation service.
I don't say that as an uncritical admirer of the pre-2015 service. In particular, it was very expensive (figures that follow are from an excellent study by the Centre for Crime and Justice Studies (14) ). In the 7 years from 2000, probation spending increased by an extraordinary 50% in real terms: over 12 year period, numbers supervised rose by much less (40%) than front line staff (65%). It is unclear that the results justified this huge jump in costs. And since then volumes of community sentences have almost halved. Pre 2015 probation also involved wasteful diseconomies of scale between lots of small Trusts, some tiny; and wasteful duplication e.g. of offender programmes for the same offenders in the same areas, as between prisons and probation services. Data I saw in the late 2000s for Unpaid Work in London suggested a hugely inefficient operation.
So I think it should be possible to develop a much cheaper public service model than the pre 2015 service, It would be fully integrated with the prison service into a single correctional service, sharing the same back office, procurement etc. functions. In due course the private sector might have another chance in a more sensible way, contracting out both prisons and probation in a significant area e.g. Kent so as to unite prison and community services under one provider, but with properly written and researched contracts and effective contract management (with real teeth and effective step in powers, as with prisons).
There are other factors favouring an integrated national service. As this saga shows, the correctional services form an integrated system and it is often necessary to move resources around as workflows change. As shown here, a fractured, partly contracted service makes this difficult. This will again be a problem when Gauke achieves his aim to abolish short prison terms, which will require a shift of resources from the prison system to the community. These changes can't be accurately forecast and it will be tedious if contracts have to be constantly reset as such changes become evident. Similarly with changes in the balance between high and low risk offenders.
Gauke wont even mention this possibility, much less look seriously at it. The terms of the 'consultation' preclude it. I wonder why not? He does not strike me as one of the Tory fanatics on privatisation: he has already cheerfully renationalised the Carillion FM service and is proposing a dual public/private track for new prisons. And he's been brave enough in questioning the Tory addiction to incarceration. Renationalisation would increase pressure on Grayling, as author of this disaster: but he has lost much support in the party through the railway cock-ups this year.
The only explanation Gauke hints at for not even thinking of renationalising is that he is intent on 'minimising the disruption that more significant reform could entail' - which will raise a hollow laugh from the thousands of staff whose careers were ended or blighted by this wholly unnecsary and destructive privatisation. So its OK to rip everything up when privatising, but not when nationalising?
Is it cost? True, an all public, union-dominated model would tend to drive up pay and pension costs way into the future. But MoJ has shown pretty brutal determination to reduce these costs in the publicly run prison service, too much so in fact. And the cost of profit margins, and of procurement, would be saved. In short, Gauke can't know what the balance of costs would be, without doing the appraisal I suggest.
I wonder if it's simply this: the Tories are saddled with being the party of endless privatisation, and can't now get off that particular horse, even if they wanted to. After all, Labour is now the party against privatisation: therefore by the law of 2 party politics, the Tories must favour it. I don't think it's even a matter of ideology: who, looking at many disasters of privatisation now crowding our newspapers, could possibly hold any more to the idiot dogma of 'public bad, private good'? Like armies in WW1, the Tories find themselves in the trenches facing the enemy opposite and have long ceased really to believe in privatisation - but 'we're here because we're here because we're here'.
At any rate, Gauke's failure to consider a national. public service is another failure, but probably not the last one, in this saga.
A final, personal note. I've been asked why I, an advocate of competition in prisons, favour renationalisation in probation. Simple: I favour intelligent privatisation, that produces public benefit: I am against stupid privatisation, that does not. Prison is intelligent privatisation. Probation is stupid privatisation.
Napoleon famously described the British as 'a nation of shopkeepers' - a people preoccupied with trade and prosperity, distrustful of great ideas and causes, common-sensical, who would always find a practical solutions to complex problems. No more. A recent YouGov poll on attitudes to Brexit reveals a new Britain.
By large majorities, people think that both Labour and the Tories are badly divided, that neither party has a clear policy on Brexit, and oppose May's plan on Brexit (even though one third of them say they aren't following that story!).
A majority actually now think voting to Brexit was a mistake (46/41%) - a bigger majority than propelled us into Brexit to start with.
That does not mean we want a soft Brexit, though. Far from it. More think May's plan is too soft (40%) than think it too soft (12%), though a third just don't know. Three times as many think 'no deal is better than a bad deal' than vice versa. Despite huge unhappiness with the Government's approach, there is a majority against having another vote on whether to accept the deal or not.
The most important Brexit issue is seen as control of immigration (28%) followed by not having to follow EU rules and not paying a sub (20% each). Tariff free trade is seen as less important (16%) and the ability of the City to continue to trade in Europe hardly figures.
A You Gov poll last year told an even more extraordinary story: that a large majority of Brexit voters are quite happy that significant economic harm to this country should be the price for Brexit. Though they think that, somehow, this won't or shouldn't happen to them or their family.
So, a nation where a majority think Brexit was a mistake - but nevertheless want the hardest possible Brexit, are happy that it should cause serious economic harm to everyone except themselves, and don't care much about trade with Europe or the future of the City, so long as we keep foreigners out. Above all, although not at all liking what is planned for them, they don't want any further say.
A nation of self-harmers, plodding towards that precipice with grim determination.
Note: I recognise that I do the Scot and Irish an injustice: they voted Remain by a large margin. It's the English and Welsh who are desperate to commit suicide.
It is, unbelievably, 5 years since the then Justice Secretary, Chris Grayling, told a shocked House of Commons that he was referring to the Serious Fraud Office the conduct of G4S and SERCO in billing government for £200m of work (on electronic motioning of offenders) which they did not do.
And we are still waiting – the best part of 2,000 days later – for a decision by the SFO on whether to prosecute.
“Justice delayed is justice denied' is an ancient maxim.
This delay is outrageous.
First, the public interest is not being served. For five years, we have not known whether or not two companies whose contracts cover a massive range of public services, and to whom billions of public money are paid each year, are to be charged with criminally defrauding the public purse. And meanwhile, they get further contracts.
Second, it is oppressive. There must be people at the centre of this who have been under investigation, under threat of prosecution, for five full years – with all the consequences of that in terms of stress, difficulty in getting employment and so on. Not just them, but their families.
Third, it threatens to defeat the interests of justice. At some point, delay of many years must affect the chances of a successful prosecution, if such is the outcome – memories fade of key events and discussions, and at this rate, witnesses may well die of old age before the SFO wakes from its slumbers.
The delay is unfathomable. The case lacks every dimension of complexity one can think of – multiple victims (only one); multiple jurisdictions (only |England and Wales); multiple contracts (two); intricate company structures (two); miscreants on the run (none known). In fact, the one victim, the Ministry of Justice, stated publicly that it had no information to show dishonesty on the part of either company.
So how can it possibly take 5 years, not to complete a trial, not even to start a trial , but to merely decide whether or not to hold a trial?
Perhaps savage cuts in the SFOs budget are to blame? Hardly: its Resource DEL last year was slightly above that for 2010-11.
It seems simply that the SFO doesn't think 5 years is a long time. [20/7: just received a FoI response which says, incredibly, that nearly one third of current SFO inquiries have been on the go more than five years. What do they do there?]
SERCO and G4S were the scandal. Now, the scandal is the SFO.
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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