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.
Anyone hoping that the Justice Committee's questioning of Rory Stewart, prisons minister, and MoJ officials on 26 June would give a clearer picture of the Department's finances was emphatically disappointed (1). The event illustrated the limitations of the Commons Committee system, in which each of a dozen or so MPs is in turn given the chance to ask 'their' list of questions. When the answer is unclear or evasive, the questioning often moves on without the issue being resolved. Particular so, when complex financial matters are discussed (2). The effect is like watching a confused battle at night, where the occasional flash briefly illuminates something - but you are not quite sure what – or how it connects to the rest of the battlefield.
In my analysis of 14 May, I described MoJ's finances as out of control, bursting the settlement agreed in SR 2015 in many directions simultaneously, by, I estimated, as much as a billion a year.
Here's what we learned from this hearing - or didn't [my comments in italics]:
Questions posed by the Committee which the MoJ could not or did not answer:
Confusion still reigns. However there is nothing here to suggest that my analysis of 14 May wasn't broadly right.
If I were advising the Committee. I'd say: don't take more oral evidence until MoJ have supplied a table showing:
a) the provision agreed in SR 15 and the main assumptions used, including prison population;
b) revised provision showing what increases agreed since the SR were for, including changed assumptions, and how funded;
c) what MoJ now thinks it needs next year and to, say, 22-23, separating capital and revenue, and the population assumptions it is using;
d) the revised building and closure programme, showing when new prisons will start and when become operational, how much capacity they will provide, and when existing prisons will close, the capacity lost through closure
e) to match d), all costs of the programme including building, fitting out and staffing and opening new prisons, estimated capital receipts from closure, transitional revenue costs of closure e.g. redundancy and of opening e.g. training, showing extent of double running (old capacity still operating while new is still not fully operational).
When the Committee has that, it could have a useful further oral examination. Trouble is, I doubt MoJ know half these things.
A final curiosity. The CFO told the Committee not once, but three times, that MoJ has a 'very strong system of financial management'. Now, believe it or not, I am very sympathetic to the position finance officials in MoJ and elsewhere in Government find themselves in. It is a far more challenging job than the one I had as FD of the HMPS around 2000, and to know that you are spending your working life systematically degrading vital public services, while publicly supporting minsters' pretence that funding is adequate to maintain services, must be hellish.
Still, when one considers that on their own admission, the last SR was disastrously mishandled, that on their own admission, maintenance contracts collapsed because MoJ didn't understand its own costs, resulting in additional spending, that MoJ as been forced to partially reverse deeply damaging cuts in prison staffing and hence exceed again the SR 2015 settlement, that probation contracts have become sustainable because MoJ didn't understand volume risk and this too may exceed the settlement provision, that MoJ's massive building programme has utterly failed, that MoJ cocked up increases in fees , that the court modernisation programme is costing more than budgeted but say the NAO may realise fewer savings than planned, that MoJ is so far adrift financially that its PUSS has had to tell Parliament he cant yet set a proper budget for the current year – when you consider all those things, then if I were the CFO, I would not go around telling Commons Committees that the MoJ has 'very strong financial management systems'.
(2) I made the same point in my book, regarding the PAC's failure to spot the MoJ's role in the SERCO/G$S tagging scandal (page 74)
Last week the Justice Committee took evidence about the state of prisons, and plans for prisons, from the prisons minister, Rory Stewart, and a number of his officials - Mike Driver, CFO of the MoJ and Justin Russell, head of ORC (Offender Reform and Commissioning).
Very visibly and curiously absent was one person – the actual head of the Prison Service, Mike Spurr. He was referred to once or twice but no-one explained why he wasn't there, as he and all his predecessors have been on such occasions in the past. So none of the people present works, or ever has worked, in a prison, or managed prisons: yet the sessions was about the work of prisons and what is happening in them.
Though - another oddity – it is increasingly difficult to distinguish Stewart's role from Spurr's: Stewart often talks as though he is the one running prisons, with absolutely no sense of the difference in role between being minister and actually managing the Service (odd reversal of Michael Howard's insistence that he was only responsible for 'policy', never 'operations'). Which makes plausible the rumour that Stewart, bizarrely, is so utterly smitten with prisons that he wants to move over to head the Service, believing that he is the man to save it.
I think I have seen this movie before. Spurr is being held locked in a room in a high tower within Queen Anne's Gate, being interrogated night and day until he signs the confession that he personally sabotaged the Spending Review settlement by moving all the decimal points around at random (which would explain a lot, come to think of it). Stewart keeps trying on his new uniform as Director General of HMPPS in front of a large mirror and ordering extra gold trim here and there, occasionally snarling at his toadying ORCs, 'Hasn't he signed yet?'. Meanwhile Spurr's loyal staff are arrested one by one or re-posted to Dartmoor or loaned to the Bulgarian prison service. But one loyal secretary has found out where Spurr is being held and is as this moment inching along the window ledge, high above Petty France, towards Spur's cell, a mobile phone clenched in her teeth, the phone number of the Clerk of the Justice Committee already on rapid dial...
TO BE CONTINUED
As a respite from prisons and the MoJ - today, railways and the DT.
My Daily Mail journalist brother Ben and I don't always see eye to eye politically, but in this recent article from the Rail Magazine, he reaches precisely the conclusion I have about prisons - that the 'public v private' slanging match is misconceived, since it is so evident that railways (like prisons) can be run equally well, and equally badly, by either sector.
One might think that the debate would be about just where and in what circumstances it makes best sense to use the two sectors, and how best to use them, and how best to get them working together. Dream on! All we ever hear - from Left, from Right, from politicians, from journalists, is 'Two legs good, four legs bad'. Or, of course, the reverse. So often in politics, it seems that people prefer to chant than to think.
The system isn’t perfect, but rail is enjoying a renaissance
Ben Le Vay
A friend has suggested travelling from Oxford to Vladivostok by train. Naturally, I agreed straightaway, but added: “Do you know the one bit across all those nations, railway systems and two continents that you can’t do by a modern, electrified railway?” Receiving the answer ‘no’, I said: “Oxford to Didcot!”
Despite the billions of pounds we have spent on the Great Western electrification - part of the very welcome railway renaissance in this country - there is no plan to finish this job. So, can this local problem begin to tell us what is shamefully shambolic about our history of national railway decision-making?
In this particular case, diesel trains will be required to do the last few miles, which flies in the face of a Government minister recently vowing to get rid of polluting diesels altogether (RAIL 847).
The problem has been partly solved by hybrid trains, which start off as powerful electric expresses from Paddington, but then somewhere en route such as Reading a diesel engine under the floor starts rumbling like a Ford Transit. Yes, these trains are nice and new, but they are neither as spacious nor as comfortable (nor even as fast under diesel power) as the original 42-year-old High Speed Trains they are replacing.
Just think about the environmental logic. You make the new electric trains as light and quiet and clean as possible… then add six-tonne diesel engines plus fuel tanks under the floor for the bits where you can’t be bothered to finish the job. I realise they will be brilliant for running into areas never likely to be electrified, such as the Cotswolds beyond Oxford, but the main line trains should not be lugging all this kit back and forth.
I also realise that electrifying the last few miles to Oxford might be better done with a total upgrade of the junction and route (I hope this explains the pause in construction), but surely this should have been anticipated. As should a lot of things, frankly. Network Rail seemed surprised that its super-duper engineering train (for installing electrification masts more quickly) cut through the signalling cables that NR itself had buried in the trackside ballast only a few years ago to defeat the cable thieves (with the result the holes are now having to be dug by hand, while the multimillion-pound electrification train idles alongside).
I welcome the new longer electric suburban trains from places such as Maidenhead, but Network Rail gives the impression of being slightly surprised that longer trains mean longer platforms (in as much as they weren’t ready on time), and that more people need more car park spaces (ditto). It is now scratching around for what it calls ‘stabling’ - overnight sidings with room for all the new longer trains, which don’t fit in. “The clue is in the word ‘longer’,” said my Oxford chum drily.
To be fair to the railway, if the politicians called a halt to the overspending and delayed electrification, with the result that many branch lines in places such as the Thames Valley and around Cardiff do not get electrified after all, suddenly you have to keep the diesel fleet in their sidings, and thus have nowhere to keep all the shiny new electric trains. It’s a messy and wasteful compromise.
The London end of the Greta Western electrificarion scheme has gone ahead pretty well and is a part of the new Crossrail service that starts next year. designed to whisk people from Maidenhead to Shenfield (why, one might ask), getting far more people across central London without to change to the overburdened Tube (that's really why). Taking full sized trains, this new route could have offered Norwich-Ipswich-Colchester expresses straight through London to Bath-Bristol or Cardiff, but sadly that seems unlikely. It is to get commuters into London more smoothly.
And this led me to a staggering realisation about all our current grand railway schemes. They have all been done before, far cheaper in real terms, and then scandalously scrapped.
Crossrail: A brilliant idea of letting trains running into Paddington from the west continue under London to the City (including Farrngdon) in one seamless move.
Done before: In 1866, the ‘Widened Lines’ allowed trains coming into Paddington, and St Pancras and King’s Cross, to continue to Moorgate and (erm) Farringdon. Services closed gradually after the Second World War, but Thameslink uses part of it.
East West Railway:A brilliant scheme to link Oxford and Cambridge by a new direct route via Milton Keynes and Bedford, and also offering useful connections between many main lines.
Done before: Look out west just north of Oxford station, and you will see a rusting swing bridge over a canal and howl in frustration. For this shows it was all done long before, in 1851, with this bridge to reach its own station (Oxford Rewley Road).
Or look above you as you speed up the West Coast Main Line at Bletchley, and you will see a splendid concrete flyover completed in 1960 by British Railways, to let the Oxford-Cambridge ‘Varsity Line’’ run more smoothly and to have better freight connections, together with brand new electric signalling - only for it all to be closed and odd bits of the line scrapped and built over.
Northern Powerhouse: A new, speedier electrified trans-Pennine route is needed to better connect Manchester with Yorkshire. The Government promised this, calling it HS3, then back-pedalled to merely electrifying the existing (rather constricted) routes. Then it back-pedalled harder, possibly abandoning even that idea.
Done before: A new electrified route was opened in 1953 by the then newly nationalised British Railways to link Manchester and Sheffield via smart new concrete tunnels at Woodhead. The through route was closed in 1970 and the empty tunnels are now used for electric cables.
HS2: This is a promised whole new line between London, the Midlands and the North, costing somewhere probably double the estimated £28 billion. They have somehow managed to spend a billion pounds already without building an inch of track!
Although it will end at Euston within a few hundred yards of the HS1 route to the Continent, astonishingly there will be no connection, so European-size (larger) night freight and day passenger trains will be unable to continue up HS2.
Meanwhile, although it will pass within a few miles of Heathrow, it won’t go there either. It will stop instead at a place called Old Oak Common in west London. Ever needed to go there? Nope, me neither, but it will link to Crossrail - the new HS2 station there will obliterate some of the sidings that Crossrail needs.
Done before: The Great Central Railway was the last great main line built within England. Edwardian visionary Sir Edward Watkin laid it out for high-speed running and to the European loading gauge (the space under bridges and tunnels), so that larger European trains could fit through. He also planned to build a Channel Tunnel and connect it up properly.
The line wasn’t finished until the beginning of the 20th century, which is why its London terminus (Marylebone) is the only one with art nouveau flourishes in its decor.requirements, and so on - are made by civil servants and ministers, not private companies.
The truth is more complex than press, politicians, public or pundits want it to be. Both nationalised and privatised railways can be brilliant and well-funded… or bungling, costly failures.
Today’s picture is mixed, but basically improving things. Many sensible bottleneck-busting schemes such as flyovers and connecting curves are going ahead around the country without much fanfare, and in recent years more people have travelled more safely at higher average speeds than ever before. In other words, a success - a nationalised company putting right earlier nationalised blunders, but getting private investors to pay for much of it (in the form of new trains, and so on).
But just as out-and-out capitalist privatisation (in the form of Railtrack) was a disaster, so complete renationalisation (including train operators and owners) as a monolithic state corporation would be, too.
If you lived through half a century of BR’s nationalised gigantic bungling, failure, closures, retreat, shabbiness, frequent strikes and terrible accidents, and now realise that so much that was undone is having to be expensively redone, why would you be in any rush to board that particular train once again?
Some things are still going wrong - I would like to see the brilliant open access competition of the East Coast route adopted elsewhere (without the far-fetched franchise bids that cause that profitable route to keep collapsing), and please finish electrification to Oxford - but much, much more is going right.
Investment is at a level only our Victorian forebears matched. The jobs being done, stations such as St Pancras and King’s Cross being wonderfully revamped, and the trains being built today (in three new factories) would not have made the wildest wishlist of the most devout 1980s rail fan.
So, as our American chums put it: if it ain’t bust, don’t fix it. Meanwhile, I’m off to Vladivostok… via Didcot. R
■ Benedict le Vay is a Fleet Street journalist, and author of Britain From the Rails: A Window Gazer’s Guide and When Train Meets Volcano.
David Gauke's public statement of what has been obvious to anyone interested in prisons for decades, that our over-large prison population is not in the public interest, and needs to be reduced, is brave, right and necessary (1). I admit that I did not think Gauke had it in him: good for him. It is certainty a huge improvement on his predecessor but two, Liz Truss, whose celebration of the doubling of the prison population as some kind of triumph for the compassionate society was an appalling piece of work, notable for some statistical legerdemain (2). Ken Clarke, Justice Minister at the start of this decade, made a similar statement, but didn't survive long enough to do anything about it (3).
Welcome though it is, nevertheless it is also a disgraceful announcement. Why? Because only a few years ago, his predecessor but four, Chris Grayling, ripped into pieces a probation service which, according to all inspection reports, was functioning reasonably well, and then sold half of it off, on the assurance that by so doing, supervision for short term prisoners could be introduced which would infallibly bring those high re-offending rates down. And that there was no other way of achieving this. And now his successor, blithely ignoring the huge damage done to the lives of probation staff and to offenders, assures us that, you know, short sentences are ineffective in reducing re-offending, so we should just stop using them. But first, guess what – we need to 'restore confidence' in the ruined service. The sheer gall! The sheer waste!
Of course, one readily understands how difficult it would be for Gauke to admit that his Tory predecessor, still in the Cabinet, wrecked the probation service, to no purpose. Any more than he can admit the Grayling wrecked the prison system by sacking one in four prison officers. There is surely something very wrong, unhealthy, about a political system where there are no consequences for such irresponsible and destructive policies as Grayling's. Grayling can't be called to account, because he isn't Justice Secretary: the man who is Justice Secretary can't be called to account, because he isn't Grayling: the civil servants can't be called to account, because they were 'only obeying orders' (actually, there is a limit to that defence - but that is for another time).
What is more astonishing than Gauke's amnesia is the silence both from Labour and from commentators (an egregious example of Korsakoff's syndrome in public policy, to which I drew attention in my very first blog (4)). Is no one going even to ask what becomes now of the Grayling reforms – whose main purpose was to put in place post release supervision for short sentence prisoners? It is easy enough for Government to draw a veil over the recent past, if everyone else is asleep.
So much for this gift horse's dubious parentage. Now for careful examination of its mouth.
While Gauke's statement is undoubtedly a major breakthrough in challenging our addiction to ever-increasing incarceration, I doubt that it will make a big difference where it is needed, in our prisons. For several reasons.
Yet, even in these most favourable circumstances, the reduction achieved was very temporary. Very quickly, the resurgent right wing of the party under Michael Howard rediscovered the delights of mass incarceration ('prison works'), with results that we are still living with. The actual reduction lasted little more than 12 months (7)
Compare that with today. Prisons are known to be in deep trouble - but have not lost control or failed in the highly visible way of the 1990s riots. (The Service is thus the victim of its own success in dealing much more confidently with disorder.) We have instead a 'slow disaster', while Government constantly affirms its belief that prisons can rehabilitate offenders - just not the short sentence ones. The PM herself is no liberal, with an authoritarian record in the Home Office. The Tories do not command a Commons majority. May presides over the most bitterly, and publicly, divided Cabinet anyone can recall, and a Tory party desperate split over Brexit, with many MPs and even Cabinet Minsters on the right of the party openly conspiring for her removal. Gauke must have No 10's tacit support for his policy, but in the prolonged period of public debate needed to bring about change, can he count on her open, public support for sending fewer offenders to prison – and indeed, would her support be helpful? Would not Tory MPs and newspapers, plotting her removal. be tempted to mobilise against such a policy simply in order to damage her (as they did on the Windrush scandal)?
(Indeed, in Scotland the Tories are already opposing exactly the policy that Gauke proposes, as a “soft-touch approach which is …. making life miserable for victims of crime across Scotland...The pendulum has swung too far in favour of criminals” )(8).
The debate on crime generally is also unhelpful to reform. After 20 years of steadily falling crime – that would have been the time for sentencing reform, but Labour always flunked it – crime, including knife crime and homicide, is on the up again (9). Moreover we are about to enter a period of great instability, worry and most likely, serious economic difficulty, as a result of an unbelievably chaotic Brexit process. In such circumstances, the Right traditionally uses fear of crime and desire for punishment to displace news that is inconvenient and encourage scapegoating and authoritarian responses to problems. The prospect of the Mail coming out for rationality in sentencing seems more remote than ever.
Not that this is just a Tory problem. At least the Tories do have a record, from time to time, of seeking to tackle our over-use of custody. Labour has, to my recollection, never once raised the issue in the past 30 years. They do not do so now, in the midst of the worst prisons crisis for a generation. And I think not just for the very obvious reason - the gift that this would be to the Mail. I do not see much sign of Labour MPs being genuinely interested in penal reform (I mean, beyond wanting bad things to happen that they can blame the Tories for) – as some certainly were in the 80s and 90s. The Lib Dems of course do propose radical change in sentencing – perhaps another way of saying that it isn't yet practical politics (10).
So its hard to see where Gauke can look to for support for a policy which is never going to be a vote winner, or a career-maker, but which can so easily be a vote loser, or a career-breaker.
2. understanding is lacking
To tackle such a long-standing and complex problem, you must first understand it. And Gauke's analysis is lacking. He focuses on sentences under 12 month - because they are less effective at reducing future re-offending. Not because they are key to the pressures on prisons. And indeed they are not key to prison over population. In fact, the proportion of the adult sentenced population serving sentences under 12 months has in fact nearly halved – from 12% in 1992 to 7% now. Short term prisoners are less of a problem, in terms of numbers, than ever before.
Shouldn't we first understand, then, what has caused the doubling of prison numbers since 1993? Particularly since Gauke's predecessor but two maintained the doubling was a good thing, and the very last thing we should do was get the courts to ease off?
Until quite recently, the MoJ itself provided something of answer to that question: 'The story of the prison population', periodically updated, but curiously, not since 2016 (wasn't that when we decided we had had 'enough of experts'?) (11). That document spells out the main factors: the courts are passing more long sentences (4 years or more) and fewer short ones (under 12 months); that is in part explained by changes in the mix of cases before the courts (more sex, drugs and violence against the person, fewer theft and burglary); recall to prison of ex-prisoners released under supervision has increased.
Some of this is precisely the territory marked out by Truss, and raises some very sensitive issues indeed, for reformist liberals as much as the Right. Hands up anyone wanting to suggest that sentences for sexual offences are too long – here, the liberal Left is if anything more punitive than the Right. (But don't the arguments against over-use of prison apply equally to all offences?) A thorough look at why we send to many more to jail than we did 25 years ago, or than our neighbours do now, and what to do about it, is thus a lot trickier than just doing away with the shortest sentences. Indeed, Truss was right in this, that the reformists have for too long been able to get away with the lazy, unfocussed assertion that we just need a lot less imprisonment, let 'em out. On a closer look, it isn't so simple. So, a thorough analysis is necessary.
The MoJ paper is not, though, adequate. For one thing, it is clear that this has been a dynamic process over a quarter of century, and at different times there have been quite different changes at work - at one time, for example a driver was longer sentences for burglary, but now volumes of burglary are in steep decline. The journey has been a complex one. A 'before and after' comparison is no longer enough.
More fundamentally, there seems a lack of inquiry about the puzzling relationship between actual crime, as experienced by victims, and the processing of crime by the criminal justice system (CJS). While crime as experienced by victims halved, levels of crime as recorded by the police changed much less. Volumes coming before the courts reduced, yet the prison population doubled. We can explain some of this. But we need a better stab at understanding the whole picture than we have, if we truly want to understand the phenomenon of prison numbers doubling while crime halves. Is there so much crime that it can halve without affecting the work of the CJS – which would seem to make the CJS pretty irrelevant in terms of crime control? Or has the CJS been freed up to focus on the more serious stuff? Or on the contrary, has it responded by drawing into the process offences that might earlier have escaped formal process?
We also badly needs an account that goes beyond the one sanction, imprisonment. Why has use of fines and cautions declined over so many years? Could they recover? Why did volumes of community sentences soar in the 1990s and early 2000s then fall so in the past decade? (12). What about an authoritative summary of evidence on the endless recycled arguments for high incarceration – the Michael Howard argument that prison reduces crime through incapacitation, and the argument that it deters – arguments still rehearsed as though self-evidently true? (13)
And yes – drugs: political dynamite, but we at least need to be looking at the practical effects of a growing movement towards decriminalisation abroad, in Portugal, Canada, Norway.
Finally, an interest of mine – cost benefit analysis. What does it cost to prevent a crime through imprisonment, compared to community penalties or for that matter, crime prevention?
(Criminologists may say, some of this is already published. Sure, but some isn't. And if political debate is to be informed, it needs pulling together in an accessible way.)
Of course, one readily understands why Gauke focuses publicly on short sentences: so as not to frighten the horses. And he signals pretty clearly that this is just a first effort, that he indeed does see the need as he puts it, 'a wider debate about what punishment means'. Quite so. But given the average tenure of Justice Secretaries, will he have time for more substantial analysis? And will he be allowed to do anything with it?
3. impact will be limited, and slow
The third reason for scepticism is the scope for making an impact, and timing.
True, Gauke has a number of options for reducing numbers besides tackling shorter sentences – more use of temporary release to prepare prisoners for resettlement (as in his recent announcement on employment of ex prisoners) (14), faster deportation of foreign nationals who take up around 10% of the prison system (latest statistics show some progress, but the lawyers have so many ways of disrupting removal), reducing recalls, encouraging great use of parole (but will the Warboys changes inhibit that?).
But if one looks just at shorter sentences, the impact must be modest. There are 5,000 adults in prison serving sentences under 12 months. There seems to be no public data breaking this group down by offence type, so it's hard to make any guess about how many would have received a community sentences, if convicted post-Gauke. But the CJS is littered with interventions intended to contain sentencing discretion that haven't worked as planned. If the courts are allowed to make their own judgement of who, exceptionally, deserves a sentence under 12 months, history suggests there may be more than expected. There will be some 'over-shoot' – courts think a prison sentences is needed, but are deterred from passing one under 12 months, so go for 12 months or more i.e. sentence inflation, not deflation. There will be some sentenced to community sentences or suspended prison sentences who end up in jail anyway, for breach proceedings etc. I suggest a reduction of 3,000 would be good going.
And assuming legislation is needed – for no-one has any authority to tell courts not to pass sentences under 12 months – it will be liable to sabotage and accident, delay and total loss in the present fervid state of Parliament (I except Labour would find some reason to oppose or sabotage it up). If legislation were introduced, passed and brought into operation by autumn 2019 – quite a tall order – the full effect would not be had until late 2020.
So, a reduction of maybe 3,000 by late 2020. But on latest forecast the prison population will have risen by 1,000 by then. So, a reduction in overcrowding of about 2,000. Welcome, of course, especially in locals (a relief more than those numbers suggest, because of the heavy churn of short sentences prisoners). But not a game changer. The percentage overcrowding of the system as a whole will not much change (and if the population carries in rising as presently forecast, will be back to where it was by the mid-2020s.) There is a risk that we do no more than stop the continuing rise in prison numbers, but thereafter achieve no substantial reduction, as has happened in the US since the late 2000's.
A final point – none of this holds out any prospect of helping with the financial crisis of the MoJ, highlighted in my last article. It is not remotely enough to save significant money, though perhaps enough to postpone building new capacity to meet rising numbers (for which, though, no funds exist!)
Hence, only one cheer. For the moment.
But the importance of Gauke's statement is far greater than its practical effect. It is the first time in a quarter of a century that Government has allowed itself to think about sentencing (if one excludes Truss panegyric to mass imprisonment, and Clarke's passing and soon forgotten comments) – and to do so by reference to facts, knowledge, and calculations about cost and benefit. If that can be built upon, the potential benefits are far greater and go a lot further than just temporarily easing prison numbers. We might actually start to create a rational, evidenced sentencing structure.
And the first step needn't depend on politicians – indeed, can't. Those who want to see such a change could and should be getting on with the ground clearing, evidence gathering and analysis I have suggest as an essential precondition for major and sustained change.
3) https://www.theguardian.com/politics/2010/oct/20/kenneth-clarke-pledges-cut-prison-population. It is sobering to see how closely his plans mirrored Gauke's - but as a Europhile liberal Tory, his days were numbered. Absit omen!
5) 'Home Office (1990) Crime, justice and protecting the public. Cmd 965, London: HMSO. People always forget that first bit. It did not say, tout court, that sending people to prison is merely an expensive way of making bad people worse.
6) Home Office (1991b) Prison disturbances April 1990: report of an inquiry by the Rt. Hon. Lord Justice Woolf Cm 1456, London: HMSO
8) Liam Kerr, Tory Justice spokesman, Scottish Parliament. Daily Express, 6 February 2018
9) 'Crime in England and Wales: year ending December 2017'. ONS 26 April 2018. But overall, no change in violent crime as a whole, and violent crime remains at a far lower level than in the 1990s. But try telling that to the average Mail reader!
10) The Lib Dems manifesto at the last Election proposed legalising cannabis and ending imprisonment for possession of drugs for personal use
12) Plainly, it's not all down to the effect of privatisation of probation, as some claim – see Peter Dawson's article https://www.huffingtonpost.co.uk/entry/new-evidence-gives-short-shrift-to-short-prison-sentences_uk_5b02ea5de4b0c240179abead?guccounter=1
13) I had my go at the Howard argument here: http://www.julianlevay.com/articles/doubling-prison-numbers-did-not-halve-crime
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 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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